IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 1 ST DAY OF DECEMBER, 2011 PRESENT THE HON’BLE MRJUSTICE MOHAN SHANTANAGOUDAR AND THE HON’BLE MRJUSTICE RAVI MALIMATH NAL APPEAL NO1331 2007 C/w BETWEEN: THE STATE OF KARNATAKA APPELLANT (BY SrL\J,MBANAKAR, ASPP) AND: 1. BHAGUBAI BABU GHANAVATE 2. SMLUMABAI KRISHNA GHANAVATE 3, KRiSHNA © ANNAPA BABU GHANAVATE 4. RAMU MARUTI PAWAR 5. GORAKH MARUTI PAWAR ALL ARE RIO PADATARWADI, r1r. I i1 ‘ LL (BY SrI,NEE[ENDRA DGUNDAE. AMICUS CURIAE) THIS CRIMINAL APPEAL IS FILED U/S 378(1) AND (3) OF CRPC. BY THE STATE P.P. FOR THE STATE PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT DT2442OO7 PASSED BY THE PRLSJ,, BELGAUM IN S,C,NO,47/03 - ACQUITTING THE RESPONDETNS/ACCUSED NOJ, 2. 4, 5 & 6 FOR THE OFFENCES P/U/S302 R/W SECJ49 OF IPC AND PRAYS THAT THE ABOVE ORDER MAY BE SET ASIDE. CRLA.NQ996 2007 BETWEEN 1. SMTBHAGUBAI BABU GHANAVATE, W/O BABU GHANAVATE, AGE: MAJOR, 2. SMT,UMABAI KRISHNA GHANAVATE, W/O KRISHNA GHANAVATE, AGE: MAJOR, 3. KRISHNA @ ANNAPPA BABU GHANAVATE, 5/0 BABU GHANAVATE, AGE: MAJOR, 4. RAMU MARUTI PAWAR, 5/0 MARUTI PAWAR, AGE: MAJOR, 5. GORAKH MARUTI PAWAR, Sb MARUTI PAWAR, AGE: MAJOR, ALL ARE RESIDENTS OF FADATARWADI. TALUK ATHANI, DISTRICT BELGAUM. -3- (BY SrLNEELENDRA D.GUNDAE, AMICUS CURIAE) AND: STATE OF KARNATAKA, BY AIGALI POLICE STATION, BELGAUM, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUIWING, BANGALORE - 560 001. RESPONDENT (BY SRI.VM.BANAKAR, ASPP) CRL.A FILED U/S 374 CR.PC BY THE ADVOCATE FOR ThE APPELLANTS AGAINST THE JUDGMENT DT.24.4.2007 PASSED BY ThE PRL. S.)., BELGAUM IN S.C.NO.47/2003 - CONVICTING THE APPELLANTS/ACCUSED NOS.4 FOR ThE OFFENCE P/U/S 143, 148, 504 AND SEC.304 PART-Il OF IPC AND ACCUSED NO.1, 2 AND 5 & 6 FOR ThE OFFENCE P/U/Ss.143, 148, 504 R/W SEC. 149 OF IPC AND ETC. ThESE CRIMINAL APPEALS COMING ON FOR HEARING, THIS DAY, MOHAN SHANTANAGOUDAR 3., DELIVERED THE FOLLOWING: JUDGMENT These appeals are flied against the judgment and order passed by the Court of the Principal Sessions Judge, Beigaum In S.C.No.47/2003. 2. The records reveal that the six accused were tried for the offence punishable under Sections 143, 148, 4’ -4- 504, 302 read with Section 149 of IPC. The Trial Court convicted accused No.4 for the offence punishable under Section 304 Part II of IPC and sentenced him to undergo simple imprisonment for 4 years and six months and to pay a fine of Rs.5,000/- with default clause. However, accused Nos.1, 2, 4, 5 and 6 were convicted for the offence punishable under Section 143 and 504 of IPC. They were sentenced to undergo simple ImprIsonment for one year and to pay a fine of Rs.2,000/-. The Trial Court directed that the sentence of imprisonment shall run concurrently. The State has filed Criminal Appeal No.1331/2007 against the judgment and order of acquittal passed by the Trial Court for the offence punishable under Section 302 read with Section 149 of PC. Whereas, the convicted accused have flied a Criminal Appeal No.996/2007 questioning the judgment and order of conviction passed by the Court below. Since both the appeals are connected, they are taken up together and decided together. I? -5- 3. Sri.V.M.Banakar, learned Additional State Public Prosecutor and Sri.Neeiendra D.Gundae, learned Amicus Curiae are heard In the matter. 4. Sri.Banakar submits that the Trial Court is not justified in acquitting the accused for the offence punishable under SectIon 302 of IPC Inasmuch as, the evidence of the eyewitnesses PWs.1, 5 and 6 proves the case of the prosecution against all the accused for the offence punishable under Section 302 of IPC. All the accused have assaulted the deceased Hariba with clubs/sticks In the morning of 03.11.2002 at 7.30 a.m.; the material on record clearly reveals the common object • on the part of all the accused to do away with the life of the deceased; the case against the accused Nos.1, 2, 3, 5 and 6 cannot be separated from the case of accused No.4 Inasmuch as, they are equally responsible for causing the death of the deceased. By taking us through. the material on record, he submits that the Trial Court ought to have -6- convicted the accused for the offence punishable under Section 302 of IPC. 5. Sri.Neelendra D.Gundae, learned Amicus Curiae submits that the accused are not criminals as such Inasmuch as, the accused being enraged by the act of the deceased and his family members of encroaching 20 guntas of land belonging to the accused, on 03.11.2002 suddenly started quarrelling with the deceased; during the scuffle, all of a sudden, accused No.4 took out a stick and assauited on the head of the deceased; there is no common object as such on the part of the other accused to do away with the life of the deceased Inasmuch as, the effort of the accused appeared to threaten the deceased and his family members for getting vacated the encroachment made by them. Thus, according to him, the prosecution case if beileved fully, will fall under the provision of 304 of IPC at the most. 6. PWs.1, 5 and 6 are the eyewitnesses to the incident, which happened at about 7.30 a.m. on 1k, -7 O311,2OO2 in which, the victim Hariba was assaulted with sticks, PW-1 shifted the injured to Athani and Sangh Hospitals by accompanying him in a jeep PWs 2 and 3 are the mahazar witnesses for seizure of sticks used for commission of offence - M,Os1 to 6 The seizure panchanamas are at ExsP2 to P7, PW-4 is a mahazaar witness for scene of commission of offence - ExP8 PW-8 Is a panch and his signature is marked at Ex,P1O. The evidence of PW-8 is of no use. He has deposed about the panchanama made in respect of the encroached area by the deceased. However, no panchanama is forthcoming from the records, The seizure panchanama of clothes of deceased is marked at Ex P9 PW-9 is the doctor, who treated the victim at Athani at the first nstance The said doctor has referred the patient to Sangh Hospital for higher t eatment PW1O the oo to ih c d ed h p stmo e Po tmorte p0 t x P a opinion relat rig to cau,e of death s t F P P11 t of ti e do e fe n dep S f of the jeep, who shifted the victim to the hospital. PW 13 is the Surveyor of the State Government, who surveyed the land of the deceased and accused No 4 by concluding that there is an encroachment of 20 guntas of land by the deceased. PW44 is the Engineer who drew a sketch of the scene of offence. PW-15 is the Private Surveyor of the encroached portion of the land. However, he has turned hostile. PWs16, 17 and 20 are the Police Constables who participated in the investigation at different stages. PW-18 is the scribe of the complaint - ExP26. PW-19 is the Head Constable, who was in the Police Station at the time when the injured was taken to the Athani Hospital immediately after the incident The said Head Constable took the injured to the Athani Hospital for treatment He the police official who received the compliant from CW as pe Ex P26 and eq etered the a e PV 21 t Hea n tabi wh eq stared U R asr at ne t a a PW 22 i he I vestigating Office who n est qated t fe n r PV’b tn P f a n I t -9- 7. At this stage itself, it Is pertinent to note that accused No.1 - Bhagubal Babu Ghanavate is the mother of accused No.3 - Babu Hariba Ghanavate. Babu Hariba Ghanavate - accused No.3 dIed during the course of the trial. Accused No.4 - Kirshna @ Annappa Babu Ghanavate Is the son of accused No.3 — Babu Hariba Ghanavate. Accused No.2 - Smt.Umabal Is the wife of accused No.4. Accused Nos.5 and 6 are strangers to the family of accused Nos.1 to 4. Accused No.6 namely Gorakh Marutl Pawar expired on 10.09.2007 during the pendency of this appeal. Thus, out of the six accused, two accused have expired and consequently, the matter abates as against the two accused, who are no more. 8. Accused Nos.1, 2 and 4 are the family members and accused No.5 Is a stranger as aforementioned. 9. It is the case of the prosecution that there was Ill will between the deceased and accused 1 to 4 as the deceased had encroached 20 guntas of land belonging to - 10 - accused 1 to 4. Accused No.3 who was actively cultivating the property, had been to Maharashtra to eke his livelihood by other means. During his absence, the deceased is stated to have encroached 20 guntas of land of accused No.1 to 4; a survey was got conducted privately by accused No.3 at first Instance, which showed the encroachment of 20 guntas of land by the deceased over the land of accused 1 to 4. However, the deceased did not agree to vacate the encroached portion. In view of the same, accused No.3 once again filed an application before the Departmental Surveyor and got the survey done through the Survey Department. Such survey also revealed encroachment by’the deceased to an extent of 20 guntas. In spIte of the same, the deceased did not agree to vacate the encroached portion and consequently, the accused 1 to 4 had got grouse against the deceased. The motive aspect Is spoken by PW-11, the son of the deceased. We do not find any ground to disbelieve the version of PW-11. He has specifically deposed as to how there was ill-will between the family of accused 1 to 4 and S - 11 - the family of the deceased. The Surveyor PW-13 has deposed about encroachment. The document at Ex.P20 is a survey report attached with the sketch. The same clearly reveals that there Is an encroachment of 20 guntas of the land by the deceased. The survey report - Ex.P20 coupled with the evidence of the surveyor of the department (PW-13) makes it amply clear that the deceased had encroached 20 guntas of land belonging to accused 1 to 4. In view of the above, the prosecution is justified in putting forth the case that the accused 1 to 4 had got the motive for commission of offence as against the deceased. 10. The evidence of PW5.1, 5 and 6 is supported with the evidence of the doctors. PW-10 is the doctor, who conducted the postmortem examination. His report Is at Ex.P18. The opinion as to the cause of death is at Ex.P19. As could be seen from the postmortem report and evidence of the doctor, It is clear that the deceased had sustained as many as 15 injurIes all over the body. He has - 12 - opined that the cause of death is due to shock and haemorrhage and multiple injuries like fracture of left neck femur, fracture of parlto temporal bone, etc. The major injury sustained by the deceased was on the head. All other injuries sustained by the deceased on other parts of the body which are not vital. The injury to the skull i.e. frontal bone has resulted Into the death of the deceased. 11. The evidence of the eyewitnesses PWs.1, 5 and •6 consistently goes to show that it was only accused No.4 who assaulted the deceased on his head and that the injury to skull and frontal bone is the cause for the death of the deceased. They have also deposed that all other accused have assaulted the deceased on the hands, legs and back. The overt acts attributed to other accused do not Include assault on the head of the deceased. 12. Thus, the assault by the other accused cannot be the cause for the death of the accused. We find that the evidence of PW5. 1, 5 and 6 is consistent and cogent. All of them have deposed that accused No.4 assaulted on - 13 - the head of the deceased. The major Injuries sustained by the deceased as aforementioned are on the head, which has resulted into the death subsequent to the Incident. 13. We find that the complaint - Ex.P26 allegedly lodged by CW-1 has come into existence In highly suspicious manner. Admittedly, the Incident has occurred at 7.30 a.m. in Padatarwadi village, Athani Taluk. The injured was Immediately taken to police station In a jeep. The jeep reached the police station at Algali at about 8.40 a.m. on the very day i.e. 03.11.2002. At that point of time, PW-19 was the Head Constable working in the police station. He was informed by the friends of the victim that the victim has suffered injuries due to the scuffle with Babu Ghanavate - accused No.3, who is no more. The Head Constable having found that the victim had sustained injuries on the head made a phone call to the Medical Officer at Algali. But the saId doctor was absent. Then he got typed a yadi (requisition) in the police station through the police constable as per Ex.P17. Thereafter, PW-19 -14- accompanied the victim and others in the same jeep and reached Government Hospital at Athani at IOMO atm. The Medical Officer said to have certified on a yadi that the victim’s physical condition Is good and that he is able to give the statement and instructed PW-18 to record the statement of the complainant. Accordingly, PW18 stated to have prepared the complaint, which was signed by the complainant as per ExP26. The complaint was handed over by PW-18 to PW-19 in the hospital at L30 flours, The Head Constable also signed on the said complaint as per ExP26(d). Thereafter, PW-19 came back to police station from hospital and registered the case in Crime No,108/2002 for the offence punishable under Sction 143, 147, 148 326 324 504 506 cad wth 149 IPC Though the alleged omplaint was recorded in the hospital though the doctors as veII as the ur e A85 es t spital t responsible off e k the Heao st b e PW 19) d d not eriture to take an endo sement f h do t elat g t ne aith r d j -15- becomes the dying declaration if it were to be genuine. However, we are of the opinion that the same cannot be treated as dying declaration inasmuch as, Ex.P26 has come into existence under suspicious circumstances. As aforementioned, the doctor has not certified the health condition of the victim on Ex.P26. However, it has come on record that the doctor has certified on a different document I.e. M.O.13. Such an endorsement made by the doctor In M.O.13 cannot be attached any value. More over, the victim was In a serious condition. He had suffered serious head injuries. Immediately within two hours of recording Ex.P26, the victim expired. The victim expired in Sangii Hospital, which means that immediately after Ex.P26 came Into existence, the victim was shifted to Sangii Hospital, wherein he was declared dead. Thus, the facts and circumstances cast doubt on the origin and genesis of Ex.P26, in view of non-availability of the reliable material with regard to the health condition of the victim during his brief stay at Athani hospital. The doctor has not issued endorsement with regard to the heaith condition of - 16 - deceased on Ex.P26. Thus, Ex.P26 can at the most be treated as complaint lodged by PW-18, who is not the eyewitness to the incident. Thus, the version found in Ex.P26 as provided by PW-18 cannot be taken as the version of eyewitness and consequently, the overt acts attributed to Individual accused in Ex.P26 are not free from doubt. In view of the above and in view of consistent evidence of eyewitnesses - PW5.1, 5 and 6 and as per the opinion of the doctor and on perusal of the material on record, we are clearly on the opinion that the head injury is the main reason for the death of the deceased. Hence, the Trial Court is justified in concluding that the accused No.4 alone is responsible for commission of the death of the deceased. 14. In our opinion, the Triai Court is justified in holding that the case does not fall under 302 of IPC but falls under 304 (II) of IPC. As aforementioned, the incident has occurred due to encroachment made by the deceased over the property of accused 1 to 4. In spite of - 17 - repeated requests, the encroachment was not cleared by the deceased. Being enraged by the same on the date of the incident, the accused No.4 suddenly started the quarrel and assaulted on the head of the deceased with the help of a stick. There cannot be any dispute that the sticks - M.O.1 to 6 are available In all the homes of an agriculturist. Thus, It cannot be said that the accused No.4 had come with preparation to assault to do away with the life of the deceased. 15. Having regard to the totality of the facts and circumstances of the case, we are of the opinion that accused No.4 along with the other accused must have come to the scene only for threatening the deceased for getting the encroachment cleared. During the quarrel, unfortunately the Incident has occurred due to the assault by accused No.4 for which other accused cannot be made liable as there Is no common object as such shared by them. Thus, the Trial Court is justified in convicting -18- accused No.4 alone for the offence punishable under SectIon 304 Part II of IPC. 16. On over all view of the matter, we are of the opinIon that the Trial Court is justified in convicting the accused No.4 for the offence punishable under Section 304 Part II of IPC and sentencing him to undergo simple Imprisonment for four years and six months and to pay a fine of Rs.5,000/- with default clause. The Trial Court was also justified in convicting other accused Nos. 1, 2, 4, 5 and 6 for the offence punishable under Section 143 and 504 of IPC and sentencing them to pay a fine of Rs.2000/-. However, the sentence of imprisonment is on the higher side. 17. We have heard the learned Additional State Public Prosecutor and learned Amicus Curiae on the point of sentence. The learned SPP has prayed for imposition of higher sentence whereas the learned Amicus Curiae submitted - 19 - that the sentence Imposed may be sufficient under the facts and circumstances of the case. 18. The Incident is of the year 2002. The accused No.4 has already undergone Imprisonment for more than 4 and ½ years. Whereas accused Nos.1, 2, 5 and 6 who are the surviving appellants In CriA.No.996/1997 have also undergone Imprisonment for more than four months. In our considered opinion, the period of imprisonment already undergone by the accused may be sufficient sentence of Imprisonment under the facts and circumstances of the case. Accordingly, the appeals flied by the State needs to be dismissed and the appeal flied by the accused needs to be allowed in part with regard to granting reduction of sentence of imprisonment. Hence, we pass the following: ORDER a) CrI.A No.1331/2007 flied by the State stands dismissed. b) CrIA No.996/2007 filed by the accused Is allowed in part to an extent of modifying the -20- sentence of Imprisonment for the period already undergone by the accused. c) Sentence of fine awarded by the Trial Court against all the accused is maintained. We place on record the valuable assistance rendered by Srl.Neelendra Gundae, learned Amicus Curiae. In appreciation of the services rendered by learned Amicus Curiae, we direct that the Amicus Curiae shall be paid Rs.7,000/- as honorarium. Sd! JUDGE Sd/ 3UDGE Pt-s