CrL \.No.26O t/200U IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DUARWAD 1)ated this the I 5i Day of Febniarv 2011 Pre,eni THE HON’BLE MR.JUSTICE KSREEDHAR RAO and THE HON’BLE MR.JUSTICE C.R.KUMARASWAMY jQ) BETWEEN: 1. l3liairappa. Sb Irappa Dabagal Age : 5( years. 0cc : Agriculture. R/o Nandikeshwar. Tq. Badarn i. Dist: Bagalkol 2. Kurnar S/o Bhairappa Dabagal, Age : 22 years, 0cc : Atriculturc. Rio Nandikeshwar Tq. Badami Dist: I3agalk&t. 3. Maiindappa. S/o Bhairappa Dabagal, 19 years. Ccc : Agricultun. R/o Nandikeshw ir Tq Badarni Disi: Ba 2alkot. \ppc11ant ‘ (By Sr B’ .Soinapw Advocatci I) T11 ,tatc’ nI KanlaLaka. F3 Cir le I Ia e Insp m Badarni J)isi’ 13agik llrniicli tat Puhik Prest c ii nr Rt i ‘fli rit tii’” dd ,PPi Crlt\ Nn2Gfl4/2()(9 :2; This criminal appeal is filed under Section 374 of the (ode of Criminal Procedure praying to confer the records of the Court below and set aside the judgment and order of convict ion and sent erice Passed by the District and Sessions Judge and Presiding Officer, FTC No.11 I3agalkot in S.C.No,5/08 dated 03.12 2008 arid acquit the appellants. This criminal appeal coming on for hearing this day. Sri, C.R.Kumaraswamy, J, delivered the Following: JUDGMENT This criminal appeal is filed under Section 374 of i he Code of Criminal Procedure by the advocate for time appellant praying this Court to set aside the judgment and order ol (orniction passed by the learned Distrh t and Sessions .Judge and PresidinQ Officer Fast Track Court No.11, F3agaikot, iii S C ,No 5/2005 dated 03 12 2008 n a tut the appellant 2. ‘lh cc it rits 1 tii nmp1a1n i a ii) 1 apj)a Shivaiappa I ill aged 2a iii i 1 i i I r d it I ir iilc sh rc c \j q I( it )1 1 1 2 ‘ I i Cr1 ANO.2604/2009 :3: Sub Inspector. Badami Police Station. It is stated in the complaint that lie uric! his wife Kasuirewwa, their children. his mother Gangm6v a. his brother Magundappa and brother’s wife Manjawvi a were residing in the said village. They owned agricultural lands and a house and their occupation was agriculture. His father had died five years back. (II) During the lifetime of his father. there was dispute In connection with the boundary of the land and the pump-set between accused and members of deceased fanillv. After the death of complainant father accused No’, 1 to 3 used 10 trouble him In connection with the said di%putc In spik of advic’t of the elders thn continue to harass them About seven mouth, bit K aecu ‘d ‘h€unim that the pump sct bclongtd t tilt m rdlsed a disputc 2nd if thes ‘t nit in u he pump Mt they iiill 1111 hi c’niplainant .in I lui fanul3 s.rl.A.Nn.2604f2(IO9 1. members. Therefoie. she complainant and his brother did nor go near that place. (ill) It Is further stated in the complaint that at 5.00 a.m., complainant had gone to his agricultural land. It was 7.00 a.m. when lie had completed his work at the land. At that time. his brother Magundappa had come there on a bicycle, he asked his brother to bring fodder for the cattle and he went to the house. At about 8.30 a.m.. when he along with Tippanna Magunclappa Haradoffi. was proceeding on a motor cycle, accused No.1 Bynppa Irappa I)abagal. accused No I Kumara B3rappa flahagal ‘ihio uere hnldlng pink ‘ce and decused No.3 Magimdappa Byrappa Dabagal. who was hoklini a ari-peg. acro%tcd thc r omplarnant and uithici v abused him ii lthy 1w cc and flld that e i dec Ii in r the ha h nnli Aill him ]lsr. Th compla nans ‘a-b fnahttrecl €nid %k ii flvuniiin t’) t’el ‘Ion p ii”I tried t.i (.‘( a C I Ian I I I ixp )IJ mi —nj )T1, 1J)tIfl’- )IjI flfl Untl P )J P’ IU( ) T tLIflJ4 id Iepj T% i Idi fltfl lb g1 l u .pqj eddvun eckle”iuze,j M1O ‘ tuipoa xiW ‘S HI Sip aji 411 f CII ftLTP( t’g 1nhldS)d lilt! U )0fl ‘qi ti p )l.. aap aqi 5JOOT atj pun pmirpi’ vddeio wants ljbalUPqi?w ( $ujWtiopq esnqssjjso:rn Ut pa.rnaas saqi iaaiaqj Wad ea tpj 4 n wig pa4jrwsct’ uddupunau pue axe jo irnaw Aq wig paigiesse aIewnj pun eddnss.cj rio aseds ‘iOU LIJA1 Lalfl asuatpo Lane o$ 04 wjq pmrn ag pun .iaqjosq sq ‘pa.qnbUa Lam uaui siaj PUB ping qoq peaq spj oj sapnfuj paupjsns $upeq puno.i q ito WtgLj .iatposq .ia$unoL c..rneuTeTdwoa alp punoj Late asaqw atp ITIOU PURL aip 04 4UM iw Lag; uaqj pasnaae atp paua;qWpj Laip PUB satpa$oi paujof pafluJ eddaq aIewn)j j)UB T.rnsng uddanuni e aafuncj 1 4°N &aiPi’o naamd ‘jeApj, eddeunweA euuedd;j ‘Ji’ 1euunqqau{) Uddl3IUl3H uddeunuw ç inopainit eddl3pun$uw ecldaipp’j sap) pacnu iueujujdwoa aip uaq.n pitu wjq paseip pasnan aip 600Z/bO9WONVi3 CiI.A.Nu2604/2009 examined his brother and declared that lit’ is dead, At that time it wa I O4% a.m. His vounLer brother wa ssatilied approximately at $3O a,ni. It is also stah d in the complaint that he learned that Al l3vrappa Irappa DabagaL A2 Kumara Bvrappa Dabagal and A3 Magundappa Bvrappa l)abagal assaulted the deceased with pick axe and cart peg. And this incident was ‘vii nessed by Hanumappa Devappa Gachhannavar and Yarnanappa Ramanna Konmir (iv) It is further stated in the complaint that accused Nos. I to 3 in (‘onilection with pump set dispute. kilkd his \ounrer brothet Magundappa by assauli mi’ hint With cart pug and ph k axe tiid that the ae tisoti also att mptcd to kill tht ‘ninplainaiit near (h I i at I of lie ill Magiinnappi Ii d 3t 3 n ‘ 4 afli at ‘Ia o’ rumnt Hopiiai. Fiadami dti to I ii t31 ‘ I Cvi A.Nn.2604/2009 :7: 3. On the basis of the above complaint lodged 1w the complainant Badanu Police have registered a case In Crimt No.163/2007 agauist accused Nos 1 tn 3 for the offence punishable under Sections 302. 307 and 504 read with SectIon 34 of Indian Penal Code. The contents of the FIR reveals that 11w IncIdent has occurred on 17 10.2007 at about 8.00 a.m. The learned Magistrate has received the FIR on the same day at 1520 hours through P.C.No.805 of Badaml Police Station along with the complaint. 4 After Investigation the Investigating agency has laid harge sheet against accused Nos I to 3 for the oftences punishable tinder St-dions .302. 301 and 501 read ith Sc’ tion 34 of Tndllan Pcnal C ock It ‘lkgel I haie• I In i ?) ri t I ildrn.apika’ce jul it on. 3 . i_It 1 “nmpI’inant brnthei r.cat u al 1 flI iTiti ‘tC %IL’t 1’si .‘ 1ijtIiit lu lvi Ii iri ba”d’ ilk 1 Cr1 A No 2604/2009 :8: legs. and that accused persons, who were holding pick axe and cart peg, went to the village bus stand at about 8.30 a.m. and on seeing the complainant coming on ‘i motor cycle, they went near to him. abused him and they uttered that they had killed his younger brother and they would kill him also. 6. p w. 1 is the complainant. He has deposed that there was dispute between the accused and Iths family In connection with the pump set He has further deposed that he told his brother Mahagundappa to bring fodder, then he vent to his housc and It was about 8.00 a.m. when he canie to the housc ‘½iter having bath ind taking It od hc. along with (‘ 13 fluppanna. proc eedt d tow ii d’ Nan apur n a in no’ cycle ihippimia as illiot ridi I ‘ff1 it m )tnhr%. It. J i1% about S 30 ;‘.m . hen he° r’a ‘hcd die bi’, tand I flu illage iid vhci they ‘iii pr WE d’at f r.lr tt.’i.rde Thd, Ui 1 in ttl Cr1 A No.2604/2009 :9: No.1 holding an axe. accused No.2 a pick axe mid accused No.3 a cart pe 1 hey came to the complainant and said that thn have killed hi’ brother and they will kill him also. Then he asked Thippanna to get down from the motor cycle. then he shouted at that time. C’.W.l7-Kanakappa. C.W.18-Shankieppa, C’ W.4 Tippanna Talyal. C.W.5 Yamanappa Gaclthannavar. C.W. 12 Paravya. (‘.W. I 0-Kumar and C.W. II Basari Sanjeeva came to resnie the complainant when accused were about to assault him and if the said persons were not then Ihi accused persons would ha e killed him lie hirther deposed that they proceeded towards the land nd found that Mahagundappa Lying on tht twound. and rn enqulnng him he told conipLunant that 41 ‘aitI rc 42 ‘cinh pick uce md Ad ‘ith call peg i”øaialiecl him and 4150 told tli c ‘rnpldinafli to a’a romtlicr I ic flit cisc mii kill lain ilso. lit riNt) 4tpn% ‘I hi€i Ii s hiothc’ ust.un’ I iji it j j ii it,.? 11 ‘ tic i ‘akin f. r (‘rI.A.No.2604/2009 :10: Government I lospftal. l3adarni. in a torn torn vehicle of Muhamesh 1-ladapad and It was 10.15 a.m. when they reached thi hospital. The donor e.aniIned his brother and declared him that lie is dead then, he vent to the pollee station at 11.30 a.rn. along with Shrishaila. lie dictated the contents of his complaint to Shrishaila, who wrote accordingly. and on the basis of the said complaint, a ease was registered 1w the police He identified the complaint at Ex.P. 1. His signature on the complaint marked as Ex.P. 1(a) and signature of Shrishalla as Ex.P. 1(b). I i During his cross examination. P.W. 1 states that when he went to lodge a complaint, police showt d th axc pick iice and cart pg at .00 a m. buch type I wnc iltur 1 u ip1emenr will be .ound gneraJy iii the agncuituibb family He omitted P mc ntu n in I hc complaint that Kumar assauhcd lrh n - vlm Ii i’” n ‘ n r ci hal)? I tb ,fl’ t ‘I I Cr!. 4.Nn.260 1/2009 Li: mention In the complaint that Kuinar was holding axe In his hand. which portion Is marked as Ex.D.3. 8. P.W.2 is the inquest punch. Hr hac deposed that he was an witness to the inquest panchnama. spot panchnama. seizure of apparels of the accused and also the deceased, seizure of weapons. During his cross examination, lie states that he did not see the cycle which was lying by the side of the canal. P.W.3 has stated In his evidence that at about 830 a.in In order to go for coolie work, he. C.Ws.12. 4, 10 and 6 were standing at the Nandikeshi at Bus-stand and at that time. the three accused pet soiis came trom the agriculturil lands P.W I wa’s riding the motor cyclt md flppann as pillion rider ‘V c usc i %os t. e e rmed with weapnn o t ien ai.std No 1 cairn . t11 tt’rnplaliiarn anti said t1’41 thee wx id kifi him -intl atteniptt-’ 4 to as%aultt iIm ‘ther they rt scued him it rat ii ll&r i It ‘is’nc k. CrlANo.260 1/2009 :12: that accused have assaulted Mahagundappa His statement ‘a i rcorded During his cross examlimUon. lie states that nobody except the accused persons themselves had Informed him about the assault on Mahagundappa. He also states that the deceased Mahagundappa except stating that he Is going to die he dlii not say anything to the complainant. He did not attempt to speak with the deceased. 9. P.W. 1 has deposed that they came to the bus stand at about 8.30 a.m. they were proceedings towards Badami, at that time, accused Nos 1 to 3 were present Ac cuscd No I was holding cart-peg and the complainant thinking that accuqed No I would assault him. stopped the vehk h, got down front it and starttd to run and that €ccusc ci No 1 chased him. I ft dso tatc s Ii ii .i ed ‘1 1 i i.. lb it they had ‘ulle I Iahagundapj a ind he would kill complainant d’s 1’hippanna. liii) lijili mwvn a ( W 1 ‘ San,. t 1 . ‘ and ?irav.. a a I’ Crl.A.No.2604/2009 13: who were at the bus stand witnessed the Incident. This witntss has turned hostile to the side of the prosecution 10 P.W a Is the auto driver. He has deposed that 1w shifted the deceased to the Government Hospital, Badami. in his autorlckshaw. During his cross examination, he states that Mahagundappa was not in a fit condition to speak. P.W.6 is the photographer who has taken the photos ol the dead body and the scene of the offence and recovery of the weapons and clothes of the deeesed I ii p wi is the wife of the deeeased. she has depoed thit pump t is m her father in lav\ i arm aft r the cle ith of her fathci hi th weusi d lwrsoIn jrre ch’hnhiit ijidi purnp-t t helnnc to the m and in this rc...arl den as a quanel. C .Ws. t an.. lb had adn.ed ii cc v r- ic Ii i )t”9’( i U.S rd ‘(tU td C’ LI Si 11i’ t”ct Cr1 A.Nn.260 1/2009 14: P.W. I should relinquish his right over the pump-set and that they threatened P.W. 1 in this regard. During her cross examination, she states that they were rakinc uiter as they desired and accused were taking water and there wa’ no quarrel. 12. P.W.8 has deposed in his evidence that he had advised the complainant and the accused in respect of the dispute pertaining to the pump-set. During his cross examination. P W.8 states that his statement was recorded at 10.00 a.m on the date of the incident 13. PW.9 Thippanna Yamanappa Tilival. 1W 10- Yamanappa Rongappa (iochannai or and 1W 11 Magondapp Hanainappa Bomsagar an the eye witnesses to the incident. P% q ha dcpnstd hat about ii month. hark at ibout 7(/) aim lumselt (‘IV , Yaminappn •t’ic (‘%‘tj Mag’ind i pa Iionnnasagar ‘c nt to dr ii’u’t ol dci.s. i’cd M gut dii c llnn iii v 111 1 1 e I t ‘ci lit I (‘rl.A.No.2604/2009 :15: Magundappa gone to the agricultural land. They proceeded towards agricultural land and saw that near the canal quarrel rook place. The bald quarrel took place In the morning at 8-00 am. When he went there. lie saw that the accused No.1 Byrappa. accused No.2 Kumara were assaulting the deceased with axe and pick-axe and accused No.3 assaultIng Magundappa with club and Magundappa fell down They have seen th accused assaulting the deceased at a distance of 150 feet, then he told the accused not to assault the victim. Then accused told him that Magundappa has been finished now they want to finish his brother Saying so the atcuscd by holding axe, pick axe. and club vent towards Village. Then lie saw Magundappa and he was acsaulted by the a cused on his leg and head and there vas nish Injury U lth kg I-Ic limber deposed that ‘Ahn. the vent nc ir thc Bu Stand ci Nanihkeshwu. hei c ‘A Is I dlpute between tIie I £ use mci PW 1- Er il)f.d 1h ,riiq’4 ‘ nt iith an i its liii’ r t . d4’ 1 1 1 C CrLA.No.2604/2009 :16: PW. 1-Erappa. When they went there (‘W.9 Fakklrappa. CW 10 Kumara. PW.3 Sarijeeva, CW. 12 Parayya and PW.4 Thippanna were present. They pacified the quarrel, in case they have not pacified the quarrel, die accused would have assaulted the complainant. After paci1vlng tile quarrel. the accused wait towards their house. Then himself. CW.5. and PW. 1 -Erappa went to the land, there they saw Magundappa and he explained to PW. I about the incident. CW.9-, ClAY. 10, PW 3 and CW 12 came there and they shifted the deceased Magundappa in an Autorlckshaw to the Government Hospital. It was about 8-00 ot 8 30 am. Thc Rickshaw va’ driven by one Mabanthesha 14. He furthet deposed that hr has gin ii Matcmt i I beioi e the I ariid 1agisrn te. Thi li arm d 1agiti ate jec1 him lwlorc. alvinu ‘a e nt i b. has dkcn ‘3 ‘ m nt s I’ r ti a 1w tare n’ gall’. c ‘eply. 1henaltn 1it k in ccl 1a’ isitt it r.• orded N I! (‘ri No.260 1/2009 :17: statement as per Ex.P. 18 and It was kept In a sealed eovei. M.O.6 to M.O.8 namely axe. plekaxe and club were In the hands of accused and he Identified the same. lie also identified the apparel of the deceased i.e. banivan, lungi and underwear. which are marked as M.O.l to 4 The accused Nos 1 to 3 were wearing shirt and lungi. 15. DurIng his cross examination he has stated that he was not able to say how many times the accused assaulted the deceased He has further stated during his cross-examination that when aenised vent to issault the complainant PW I he told them not to a%sault the complainant and he did not question about ahi the accused aeje asa1i1t1ng the complainant ewltnt St tic rontis h ik it 7 1 4% hnlduig axe anl -in a’t d ‘o..3 C IC PW O1imatalp iii tht Ir(idi iptd llht hot cm tic hit the : nqd Nr ) (1 .r Q ( .2 i\.I hL)Iililit )It k iae I P I I flI.A.Nct2bcJ4/2009 18: was holding club and they were assaulting Magundappa. The accused Nos. I and 2 assaulted Magunclappa with axe and plckaxc md act used No 3 aqsaulted Magundappa with club. Himself, PW.9 and (‘W.6 rescued him and also told the accused that not to assault him for that the accused told him they finished Magundappa and they also uttered that they will also finish the brother of the deceascd and by saying so they went towards Vifiage. When they spoke with Magtrndappa. be stated him to prevent his brother coming to the spot otherwise. lie may not escape from the assault of the accused. 7 He further depo.ed tha hereifter ih n they ern to Nandikeshara Bus Stand the accused Nos 1 • ii i red t LW i that thn. tilled hK brothci md th nll dlo kill him i e 1 1 and al%o the chased him in noldrng av pic Is a c and club. Iun 41 junted ‘,W flu-i ai.l p—t ifit I tin qu.u ret (‘rt.A.Nn.2604/2009 :19: 18. He further deposed that his statement was recorded as per Ex P 19 before the learned Magistrate The learned Magistrate also questioned him whether he was giving staterni nt oluntarl1y or there is any pressure on him to give the statement. When PW. 1 went to Police Station for lodging complaint. he was In the Hospital. He has stated that he was at the spot about 15 to 20 minutes where the deceased Magundappa was assaulted, but he did not speak sith Magundappa. 19. IS. 11 -Magundappa llanamappa I3ommasagara is another eve witness to the rnddent. lit’ has deposed on the saint line as that of other cvi witnesses 1 he tvidene if thi’. witness reveals th it ac CU%( ii No’ 1 tc 3 e Ut i M .,u dapa His s at’men crded ytl errni Igntatc I Ci LA.No2604/2OO9 20 20. PWl2 is the Medical Officer, ho conducted the PM. examination on the dead body of deceased Magundappa 1k has dposed that th ausc of death is due to severe haemorrhage as a result of neurogenic shock to the brain and multiple fractures The time of death is about 8 hours prior to the PM. examination. 21. PW. 13 is the Assistant Executive Engineer of PWD, who drew the sketch of scene of offence. 22 PW 1 1 is the Ilamali He has deposed that S months back at 8 30 am when he as in the Bus Stand P\’ 3 C XV 12 were also standing there 1 he accused Nos 1 to 3 came there md omplainant Frippa and Thippanni w n pro ceding m Motor Cycle and at thmt tinic th a isd N s It 3 topped Li ippa nd ith ed ha h nl1e i o th a lb ml, old I im h will ku ii also I e M I r h a In r h II I’ I Cr1 A No 2604/2009 21 started running. At that time, PWS, PW. 10 came and pacified the quarrel. ‘flw accused Nos. 1 to 3 were ho1din& axe. pickase and club. After pacifying the quarrel, the accused went towards their house. Himcclf. Thippanna. Sanjiva. Ymanappa and Tliippanna Erappa went towards the land and they saw Magundappa near canal. Magundappa sustained injuries on his hand and leg. Magundappa told the complainant that the accused assaulted him and they will also assault him and told him to go away in order to escape physical assault of the accused. He has given statement before the Police. rhe apparel of the deecased-Maccundappa wa’ sowed, it was marked asMO9tn 14. 23 P’iV lo is dit Pohc’e Constable, who Ctpprelicnd”i1 thi d( nise’ \gs I u 3 ni ! 7 0 )O(’ a I 90 pit’ and pndnct-d them belnit. thc- PSI flV.22 (‘riA.No.260 1/2009 22: 24. PW.16 Is the Police Constable, who produced the apparel ol the deceased befon the mi estigating Officer and the same was set’ed under Fx.P 26. 25. 1W. 17 has deposed that he hah registered the case In CrIme No.163/2007 on the complaint of complainant and prepared FIR and sent the same to the learned Magistrate between 3 15 and 3 20 pm 26. PW. 18 Is the Police Constable. who carded the articles to FSL. Belgaum. PW. 19 Is the Police Constable. who carried the blood stained sample mud to the FSL on 20 12 2007 bdonglng to Crime No.160/2007. 27. PW.20 is the Police Inspector. who conducted in cstlganoii and after ‘ompletion of investigation laid the bans sh. et icaLnst tin’ acnistd. )$ 21 is ilw leirncd M tgi%Liitc. iho x’ corded the tasemnh1 4. PO anti IV II TIt lia ,‘ailed ii, 111% C. J(jf*tjK ! ir t fupiji rd Jjr. it1IP%%’ nit’ ‘!i V C’rLA.Nu.260 1/2009 23: there was any threat to them or whether they are giving %talement voluntarily. The statement of the witnesses were marked as EtP 17 to 20 29. PW.22 Is the PSI. who received the complaint of the complainant and registered the same In Crime No.163/2007 and sent the same to his superior, He has conducted Inquest panchanama. spot panchanama and seized blood stained mud, sample mud and Inspected the bus stand and drew panchanama to that effect and recorded statement of the witnesses, seized the axe. pickaxe and club and also blood stained cloths, lie also made arrangement to record ihe tatenwut of ihe wflnesses hefoi e the learned Magistrate. ‘30 The statement ci icc used No’, I t) 3 rec or led the cacustd Ii’nit d tht incrimInating v li u p a hip ‘igti”1 them 3 ii c tt r’l ci i tncr CrIANn.2604/2009 :24 11w Trial Court has observed that 1W. 12 opined that cause of death is due to severe liaernorrhage an(l iieurogenie shock of brain and multiple fractures The complainant. PWs.9 to Ii. 14. 3 and 4 deposed that the deceased had sustained injuries on the head. legs and hands. The death of the deceased Maguiidappa is homicidal. The complainant in detail stated the enmity between him and his famliv members on one hand and accused on the other hand in respect of land hund dispute and sharing water of the I.P. set installed oh Malaprabha river bed situated at Nandikeshwar Ti1lage. The Trial Court further observed that PWs 9 10 and 11 deposed that on Ihe said day benAet n 7 30 to 8 00 am. thn went to the house of