k Crl.A.No.2670/2010 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD Dated this the 4t1 Day of February 2011 Present THE HON’BLE MR.JUSTICE K.SREEDHAR RAO and THE HON’BLE MR.JUSTICE C.R.KUMARASWAMY Criminal Appeal No.2670/2010 BETWEEN: 1. Basavani, S/o Mallappa Ganiger, Age: 72 years. 0cc: Agriculture. 2. Mahantesh. Sb Basavanne Ganiger. Age: 54 years. 0cc: Agriculture. 3. Chandrappa, Sb Mallappa Ganiger, Age: 71 years, 0cc: Agriculture, 4. Satteppa, S/o Mallappa Ganiger, Age: 48 years, 0cc: Agriculture. 5. Prakash. •S/o Chandrappa Ganiger. Age: 35 years. 0cc: Agriculture. 6. Mallikarjun. S/o Satteppa Ganiger, Age: 41 years, 0cc: Agricu.lture. Crl.A.No,2670/20 10 7. Aijun. S/o Shivamurthi Ganiger Age: 72 years. 0cc: Agriculture. Appellanis Appellant Nos. 1 to 7 are R/o Kuraguppi. Tal: Hukkeri. I)ist: Belgaum. (By Sri. Neelendra D .Gunde. Advocate) AND: The State of Karnataka, By Gokak Rural Police, Represented by State Public Prosecutor, High Court Building, Dharwad. Respondent (By Sri. Bahubali A.Danawade. HCGP) This crjmna1 appeal is filed under Section 374(2) of the Code of Criminal Procedure seeking to set aside the judgment and order of conviction and sentence recorded by the learned Principal Sessions Judge, Belgaum. in S.c.No.94/2002. dated 15.04.2010. thereby convicting the accused No. I and 2 appellant No. 1 & 2 for the offences punishable under Section 302 read with 149 of IPC and sentenced them to undergo R.I. for life and further to pay a fine of Rs3,0O,000/ each with default clause and etc. This criminal appeal coming on for hearing this day, CRJCumaraswamy, J, delivered the following: JUDGMENT Cr1 .A.No.2670/20 10 :3: This criminal appeal is filed under Section 374(2) of the Code of Criminal Procedure seeking to set aside the judgment and order ol conviction and sentence recorded by the learned Principal Sessions Judge. Belgaum. in S.C.No.94/2002, dated 15,04,2010, thereby convicting the accused No.1 and 2 appellant No. 1 & 2 for the offences punishable under Section 302 read with 149 of IPC and sentencing them to undergo rigorous imprisonment for life and further to pay a fine of Rs.3.00.000/ each with default clause and further convicting them for offences punishable under Sections 143. 147 and 148 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for a period of 4 months: further convicting accused No.4 & 5 for offence punishable under Sections 323 read with Section 149 and under Sections 143, 147, 148 of IPC and sentencing to undergo S.I. for period of 4 months and to pay a line of Rs.500/- each with default clause: further sentencing accused No.6 to undergo S.I. for 3 months and w pay a fine of Rs. 1,000/ with default clause for the offence punishable under Section 323 read witli Section 1 49 & 143. 147. 148 of IPC, further accused Nos.7 & 9 are sentenced CrI.A.No.2670/2010 :4: to pay a fine of Rs. 1.000/- each for offence punishable under Section 323 read with 149& 143. 147& 148 of IPO. 2. The contents of the complaint are as under: (1) One Gangadevi Siddappa Ganiger. a resident of Kaitnal village, lodged a complaint before the Police Sub Inspector, Gokak Rural Police Station on 05.08.2001. It is stated in the complaint that she, along with her husband, was residing in Kaitnal village. On 19.06.2001, complaInant’s brother Nlngaraj Ramappa Ganiger entered into an agreement with one Lagamavva Shivalingappa Ganiger, a resident of Kaitnal village, to purchase the land bearing Sy.No.418 measuring 8 acres 20 guntas for a sale consideration of Rs.2,25,250/-; paid Rs.50,000/- as advance and took possession of the said land. Since Basavanni Maliappa Ganiger. who was cultivating the said land right from the beginning, used to pick up quarrel and In this regard a complaint was lodged against him on 16.07.2001. On the basis of the said complaint police had taken action against LI Crl,A,No,2670/20 10 5: him, So, there was ill will between the family members of the complainant and family members of the accused. (ii) It is further stated in the complaint that on 05.08.2001 in the morning at about 9.30 a.m,, the complainant, along with her brotherShankara, her mother Shantawwa, her brother4nlawGurulingappa, her another brother-Basuraj and her sonAnand, went to the land purchased by them and they were picking up the stones. At about 10.00 a.m.. the accused persons viz., 1) Basavanni Mallappa Ganiger, 2) Mahantesh Basavanne Ganiger, 3) Shivamurti Mallappa Ganiger, 4) Chandrappa Mallappa Ganiger, 5) Satteppa Mallappa Ganiger, 6) Prakash Chandrappa Ganiger, 7) Mallikarjun Satteppa Ganiger, 8) Revappa Shivamurti Ganiger, 9) Arjun Shivamurti Ganiger and others came to the land and started sowing. Then the complainant and her family members raised objection. There was an altercation between the complainant and the accused, At that time, some accused persons started to assault her brother Basuraj and when they went to his rescue, the above mentioned 9 accused persons formed into an unlawful U Crl.A.No.2670/20 10 :6: assembly and assaulted the husband of (he complainant saving that they would kill him. Savin so. Al -Basavanni Mallappa Ganiger squeezed the testicles of the deceased Sidappa Gadigappa Ganeger A2-Mahantesh Basavanne Ganiger assaulted the deceased on his head with a stick and A3-Shivamurti Mallappa Ganiger assaulted the deceased by means of a stone on his chest, The deceased fell down and at that time, the other accused persons kicked him. The complainant and her family members went to the rescue of the deceased. Since the deceased had sustained injury to his testicles, complainant and her family members took him to the Government Hospital at Gokak. The doctor examined him and AZ declared that he dead and at that time it was 12.10 noon. (iii) It is also stated in the complamt that the persons mentioned in the complaint having developed ill-will in connection with the possession of the land picked up quarrel and assaulted complainant’s brother, abused husband of the complainant, squeezed his testicles and also assaulted him by means of stick. and consequently, he died. CrLA.No2670/20 10 :7: 3. On the basis of the above complaint, a case in Crime No. 99/2001 was registered for the offences punishable under Sections 143, 147, 148, 302, 323, 504, 506 read with Section 149 of IPC against ALBasavanni Mallappa Ganiger, A2 Mahantesh Basavanne Ganiger, A3-Shivamurti Mallappa Ganiger, A4-Chandrappa Mallappa Ganiger, A5Satteppa Mallappa Ganiger, A6Prakash Chandrappa Ganiger, A7 Mallikarjun Satteppa Ganiger, A8-Revappa Shivamurti Ganiger, A9-Arjun Shivamurti Ganiger and others. The FIR was sent to the learned Magistrate and the learned Magistrate received the FIR along with original complaint through P.C.No. 1363 on 05.08.2001 at 2.30 p.m. 4. The Circle Inspector of Police, Gokak, after completion of investigation laid chargesheet against Al to AlO. The names of Al to A9 were mentioned in the complaint and the name of AlO was added as an accused during the course of investigation. 5. It is stated in the chargesheet that the complainant’s brother C.W. 12 er.tered into an agreement on 19.06.2001 by CrLANo.2670/20 10 paying Rs.50,000/ as advance. Accused claimed that they were cultivating the land and they asserted that they will not give the possession. So, there was dispute between the complainant and the accused and earlier there was 107 Cr,Pc proceedings between family members of the accused and family members of the complainant. On O5.O82OO 1, at about 1O0O am.. the complainant and his family members went to cultivate the land. At that time, accused Nos,8 & 9 came and assaulted P.W.5 by hands; A6 and A7 assaulted P.W4 by hands, A4 and A5 assaulted P.W.6 by hands, When the complainant’s husband Siddappa went to rescue other members of his family, Al squeezed the testicles of Sidappa Gadegappa Geneger. A2 assaulted him by means of a stick on his head; A3 assaulted him by means of a stone on his chest. They also abused them in filthy language. They also threatened that they will kill them. AlO was present at the spot and he instigated the other accused to assault the complainant’s husband and thereby accused are alleged to have committed offences punishable under Sections 143, 147, / CrLA.No.2670/20 10 :9: 148, 302, 323. 504, 506, 109 read with Section 149 of Indian Penal Code. 6. One Satteppa Ramappa Kanagar-P.W. I is the witness to the inquest panchnama. spot panchanama, seizure of clothes arid personal search of the accused. He has deposed that there was a scratch on the head of the deceased and his testicles were swollen. He further deposed that M.Os. 1 and 2- agricultural implements were seized. During his cross examination, he states that the police took his signature at the bus-stand. 7. P.W-2 Gangadevi Siddappa Ganiger- is the wife of the deceased. She has deposed that on 19.06.200 1 her brother Ningaraj Ramappa Ganiger entered into an agreement with Lagamawwa to purchase the land bearing Sy.No.418 measuring 8 acres 20 guntas for a sale consideration of Rs.2.25.250/-. for which Rs50,000/- was paid to Lagamawwa by way of advance and they took possession of the said land. She further deposed that as accused were tenants of the said land. they used to pick up quarrel with them in this reard Crl.A.No.2670/20 10 and therefore, a complaint was lodged on 16.07.2001 by Shankar Ramappa Ganiger alleging that the accused were obstructing the cultivation of land; and that police had taken action against the said accused persons. 8. PW.2 has further deposed that on 05.08.2001 at about 9.30 a. m., she. along with her brothers-Shankar and Basavaraj, husband-Siddappa, brother-in-law-Gurulingappa, mother-Shantawwa and son-Anancla. went to the land bearing Sy.No.4 18 purchased by them to cultivate and they were picking up the stones and at that time. accused Nos. 1 to 10 also came to cultivate the land. There was an altercation between accused Nos. 1 to 10 and complainant. A7- Mallikaijun and A6-Prakash assaulted her brother Shankar, A4-Chandrappa assaulted her son Anand on his stomach, A8- Revappa and A9-Aijun assaulted Basavaraj. At that time there was verbal exchange between them, The husband of the complainant went to rescue his son and brothers of the complainant and, at that time, Al -Basavanni squeezed testicles of her husband. A2-Mahantesh assaulted her husband on his head by means of a stick, A3-Shivamurti / Cr1.A.No.2670/2010 11: assaulted her husband on his chest with a stone and when Siddappa fell down. Al to A1() assaulted him. By that time the complainant and her family members rescued Sicidappa. They secured a 407 vehicle, shifted Siddappa into the vehicle and took him to Government Hospital at. Gokak for treatment. The land which was purchased by the complainant was being cultivated by the accused persons right from the beginning. The accused persons developed ill-will against them and assaulted her husband, son and others. She lodged a complaint in this regard as per Ex.P5 and identified her signature at Ex.P.5(a). After lodging the complaint, she again went to the police station. She saw dead body of her husband. On the date of the incident, AlO was also along with other accused was present at the spot and he was instigating them to commit the crime. The quarrel between the complainant and the accused persons W witnessed by Basavanni Siddrama Ganiger, Ramasidda Ningappa Kanagar, Ningappa Ramappa Kanagar. 9. During her cross-examination, P.\V. 1 admits that she has omitted m state in the complaint that Ramasidda, Crl.A.No.2670/2010 12: Ningappa and Basavanni have seen the incident, She states that the land in question, which was intended to be purchased under the agreement, was cultivated by accused No.1. She also states that she has seen Al Basavanni squeezing testicles of her husband, accused No.2Mahantesh assaulting her husband by means of stick and A3Shivamurti assaulting the deceased with stone. 10. P.W.3 is one of the eye witness and relative of P.W. 1. He has deposed that Al squeezed testicles of the deceased, A2 assaulted deceased by means of stick on his head and A3 assaulted deceased by means of stone. Though this witness was crossexamined but nothing elicited to disbelieve his evidence. 11. P,W4 is another eye witness. His evidence is in the same lines as that of P,W,3. P,W5 is the neighbouring land owner. He has deposed that Al squeezed testicles of the deceased, A2 assaulted the deceased on his head by means of stick and A3 assaulted the deceased by means of stone. During his crossexarnination, PW5 states that his vision is Crl.A.No.2670/2010 13: not so clear. P.W.6 is the mother-in-law of the deceased: she has deposed that Al-Basavanni Mallappa Ganiger, A2- Mahantesh Basavanne Ganiger. A3-Shivamurti Mallappa Ganiger. A4-Chandrappa Mallappa Ganiger. A5-Satteppa Mallappa Ganiger. A6-Prakash Chandrappa Ganiger. A7- Mallikarj tin Satteppa Ganiger. A8-Revappa Shivamurti Ganiger, A9-Arjun Shivamurti Ganiger and Al 0-Adiveppa formed into an unlawful assembly and came to their land: A9 and A8 assaulted her son Basavaraj, A7 and A6 assaulted her son Shankar. A4 and A5 assaulted her grandson Anand and when her son-in-law Siddappa came to rescue. Al squeezed testicles of Siddappa. A2 assaulted Siddappa by means of stick and A3 assaulted Siddappa by means of stone on his chest, Though this witness is cross-examined at length hut nothing is elicited to disbelieve her evidence, 12. P.W.7-Basavaraj is the brother of P.W.2 and an injured eye witness. He has deposed that A8 and A9 assaulted him by their hands, A6 and A7 assaulted his elder brother Shankar by their hands, A4 and A5 assaulted Anand with their hands. He further deposed that Al squeezed testicles of CrLA.No.2670/20 10 14: Siddappa. A2 assaulted Siddappa with stick on his chest and A3 assaulted Siddappa with stone on his chest. During his cross-examination. he states that at no point of time. the accused were personally cultivating the land in question. 13. P.W.8 is the brother of P.W.2. He has deposed in the same lines as that of P.W.7, but during his cross-examination he admits that Al has filed a suit against Lagamavva and complainant and that Al was cultivating the land. P.W.9 is the son of the deceased, He has deposed that on 05.08.2001, at about 10.30 a.m. all the accused came to the land to sow the seeds. At that time, the complainant objected. So A6 and A7 assaulted Shankar, A4 and A5 assaulted him and that when his father intervened, Al squeezed testicles of his father, A2 assaulted his father with stick on his head and A3 assaulted his father with stone on his chest. During his cross examination. he admits that he was not able to point out the scene of offence. 14. P.W. lO-Ningaraj is the brother of the complainant. He is a hearsay witness. He states in his evidence that he entered into an agreement with Lagamawwa to purchase the Crl.A.No.2670/20 10 15: land, P.W. 11 is an attesting witness to the agreement of sale. P,W. 12 is the daughter of P.W. 14 and she is a hearsay witness, P.W. 13 is an attestor to the agreement of sale. P,W. 14 Lagamawwa is the owner of the land in question. In her evidence she has deposed that she entered into an agreement with the Ningaraj, brother of the complainant, to sell the land for a sale consideration of Rs.2,25,25O/ and that she received Rs.5O,OOO/ towards advance. P.W. 15 is the Medical Officer who treated P.Ws,8 & 9 and issued wound certificates as per Ex.P.8 and 9. He has given the opinion that they have not sustained any injury. P.W. 16 is a police constable who carried FIR to the Magistrate. P.W. 17 is another police constable who handed over dead body of the Siddappa to his legal heirs, P.W. 18 is the police official who searched for accused Nos,7, 8, 9 & 10. P,W. 19 is the Assistant SubInspector of Police. He has deposed that on 05.08.2001 at 1315 hours Gangadevi appeared before him and gave a written complaint, on the basis of which, he registered a case in Crime No.99/2001 for the offences punishable under Sections 143, 147, 148, 323, 303. 504, 506 read with Section 149 of Indian Penal Code, Cr1ANo2670/20 10 16: and thereafter, he sent the FIR to the jurisdictional Magistrate. PW2O is the doctor who conducted Postmortem examination on the dead body of Siddappa. He has deposed that cause of death of Siddappa is due to shock as a result of injury sustained by him to his head, and that time since death was 6 to 24 hours prior to the postmortem examination and that he has issued Postmortem Report as per Ex.P.15, P.W.21 is the main Investigating Officer who after completion of the investigation laid chargesheet. 15. Statements of accused were recorded under Section 313 of Code of Criminal Procedure. Accused have denied the incriminating evidence appearing against them. 16. The sum and substance of the finding of the Trial Court is as under: (i) The Trial Court mainly relied upon the evidence of P.W.2, P,Ws,3 to 9 the injured eyewitnesses and independent eyewitnesses and also the evidence of doctorP,W.2O, From the evidence of P,W,2, the Trial Court found that Al squeezed the testicles of deceased, A2 assaulted on the he.ad of decea.ed Crl.A.No.2670/2010 : 17: with a suck and A3 assaulted on the chest of the deceased with a stone, and that the said evidence corroborated with the evidence of P.Ws.4 to 9. The trial Court has observed that the presence of P.Ws.7, 8 and 9 at the scene of offence cannot be disbelieved In view of they being Injured as per Exs.P.18, 7 and 8. (H) Therefore, the Thal Court convicted accused Nos. 1 and 2 for the offence punishable under SectIon 302 read with Section 149 of Indian Penal Code and also under SectIon 143, 147. 148 of Indian Penal Code. The trial Court also convicted A4 to A7 and A9 for the offence under Section 323 read with SectIon 149 and under Sections 143, 147. 148 of Indian Penal Code, however, It acquitted them of the offences under SectIons 302, 504 and 506 read with 149 of Indian Penal Code. The Thal Court acquItted AlO of all the charges leveled against him. Since AS and AS were reported to be dead, the case against them stood abated. 17. Feeling aggrieved by the Impugned order, Al, A2, A4 to A7 and A9 have ified this appeal. C, CrLANo.2670/2010 18: 18, We have heard the learned counsel for the appellants as ve11 as the learned High Court Government Pleader for the respondent-State. We have perused the Trial Court records. 19. It is the contention of the learned counsel for the appellant that the accused persons have been falsely implicated in this crime. It is undisputed fact that accused are in possession of the land in question. There was an altercation between the family members of the complainant and family members of the accused in connection with possession of land and also its ownership and, it is in this background, the incident has occurred, He also contends that the PM Report reveals that death is due to shock as a result of injury sustained by him, He further contends that due to fall of Siddappa the death might have occurred. Therefore, he submits that the offence may fall under Section 304 Part II since there was no intention on the part of the accused to cause an injury to the deceased. which would in the ordinary course of nature result in death. CrLA.No.2670/2010 :19: 20. Learned High Court Government Pleader supports the Impugned judgment and order of conviction. He submits that P.Ws.2 to 9 are the material witnesses. They clearly depose In their evidence the nature of acts of the accused. They also deposed that accused assaulted them. They have clearly narrated the role played by each of the accused. 21. In view of the submission made by the learned counsel for the appellants. the question that arises for our consideration Is, whether the offence falls under Section 304 Part I or 304 Part II of Indian Penal Code. 22. Our answer to the above question Is as under: 23. PW-l4 has deposed that she has executed an agreement of sale In favour of PW-10 Ningaraj Pamsippa Genlger, for a consideration amount of Rs. 2,25.250-00/- and an advance amount of Rs. 50,000/- was paid to her. The agreement relates to Malki land. Evidence of PW.6 reveals that prior purchase of land In question accused was cultivatIng the same. PW.8 has stated In his evidence that accused No.1 was not wffllng to deliver the Possession of the Li-’ CrL&No.2670/2010 :20: land in question. Evidence of PW.2. Gangadevi - Complainant discloses there was an altercation between the complainant, their family members and accused No-i to 10. 24. The contention of the learned counsel for the appellants is that the offence took place without premeditation and it was due an altercation between the family members of the complainant and family members of the accused and this background this incident took place. The overt acts attributed by the wife of the deceased are that Al squeezed testicles of the deceased. A2 assaulted on the head of the deceased by means of a suck and AS assaulted on the chest of the deceased by means of a stone. But, the opinion of the doctor Is to the effect that death was due to shock as a result of Injuiy sustained by the deceased on his head. There is also positive evidence to the effect that It was because of the altercation between the family members of the accused and the complainant this Incident took plac, 1d the deceased was assaulted and he fell on the ground. From the opinion of the doctor, It is also found that there was Intra-cerebral bleeding. C, Crl.A.No.2670/2010 21 There is a land dispute between tlie accused and complainant. There was a sudden quarrel and ligbt between theni without pre—meditation. This case is covered by Exception 4 Section 300 JPC. 25. Taking into consideration the overall aspect of the matter, we are of the view that the finding recorded by the Trial Court that Al and A2 are guilty of the offence punishable under Section 302 of Indian Penal Code requires to be modified by altering it to the offence punishable under Section 304 Part II as though there was knowledge that the injury was likely to cause death there was no intention. In that view of the matter, the finding of the trial Court that Al and A2 are guilty of the offence punishable under Section 302 of Indian Penal Code is altered to that of Section 304 Part II of Indian penal Code. 26. The next question that arises for our consideration is with regard to the punishment that has to he inflicted on Al and A2 Crl.A.No.2670/20 10 22: 27. Since the finding recorded by the Thai Court is altered to that of the offence punishable under Section 304 Part if. the accused are hereby sentenced to undergo imprisonment for a period of three years. 28. With regard to fine imposed by the Thai Court to the extent of Rs.3,00,000/- each on Al and A2, it is submitted that the fine imposed is heavy; Al and A2 are having wife and children and their economic condition is not sound. In that view of the matter, we feel It proper to Impose a fine of Rs.25,000/- each on Al and A2 and, in default of payment of fine amount, they shall suffer Imprisonment for a period of one year each. 29. In so far as other accused i.e.. A4 to A7 and A9 are concerned, they are sentenced to pay fine of Rs. 1,000/- each. In default of payment of fine amount, they shall undergo imprisonment for a period of two months. In the result, we pass the following: ORDER (-F Crl.A.No.2670/2010 23: This appeal is allowed in part in the terms indicated above. Accused Nos, I and 2 are entitled to the benefit of set off under Section 428 of Criminal Procedure Code. Sd/ JUDGE Sal JUDGE Kms