IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated ihi’ iht 1 ?‘ da of ‘\Joernbei 2011 PRESENT THE HON’BLE MR JUSTICE D V SHYLENDRA KUMAR AND THE HON’BLE MR JUSTICE C R KUMARASWAMY Tflifl9lA Jo97f2OQ6fAi ZiC(tli25LSI() IN CRL.A, 297 OF 2006 BETWEEN: S 1XFF. OF K. \RNALKA B’i DAVV\AGF RE R[ PA!. POLI(E \PPEI V\ I f3v Sri P M Naxaz, Addi PPi AND S O STOF)XPP\ \(1 )AI )12 \[ I ,I )I APFA c, JET ( (I) }1 IJ(!I I A{) DA’ A;L!E I F)\ iV S b\ Sri h i)i - r 2 mis CRIMINAL APPEAL FILEI) UXDER SECTION 378 (11 & (3) CRP 1’ BY THE SIATFD UP. FOR THE SPATE PRAYING Iii VI Fills HON BLE (01 R1 MAY BE PLEASED IX) ( 1 RAN F LEAVE H) FILE AX \PPE\L AGAINST i-ElF JUDGEMENT DP 23 10)005 PASSED B\ ITIE ADDI 53 F IT 1, I)A\ANA(%ERE IN FCNO 6/2fl(i- ACQI TRiM; CHIC RESPO’cDE FSAC(TSEI) FOR filE 01 FL\( ES P/U SEC 5 302 ND 307 R/W 34 OF ILL ANT) F TX IN CRLA. 2162 OF 2005 BETWEEN: NAGARAJA S/O SIDDAPPA AGED ABOUT 26 YEARS KADA/JJA VILLAGE DAVANAGERE \PPE1 LAN]’ [13v Sri Fl (opai, AcIv. AN STA IL OF KARNAIAKA BY DAVANAC1ERE POLICE (RT’iiA1 DAVANAGF EL DISTRI( I RESPONDEN 1111 PJMIXAL Al PEAl I TEED N )I R SF ( I ION 7 1 1/ ( AL li-IF AD\ OC4JE FOR ‘FilE APPELL\NI Ao3IXSF THE F ) MFN )l )( 03 PASSFD IY I IF \DFL ASI IRA(’K ( O RI I )V V\ \GERE, iN S.. \O,56, 05 C ON\ILHM* 1H \PPF1 ANT/ACCLSFD NO FOR iHI SI FLN( F P/T /S3 )1(2 0! TIC MJ) SEX’ EN(ONG HIM I’ \DLRfl P 1 oR 10 5E AND 10 PVì FINE U RS 50o / 1) () INIC-li AL. I I M)N[FI \NDIAL( 3 JUDGMENT ( rirninal Appeal Nu 297 of 2006 is filed undei Section 378(1) and t3 of Code of Criminal Proedure [CrPCI by the State Public Prosecutor fir the state, praying that ibis court may he pleased to grant leave to tile the appeal against the judgment and order dated 29 l() 2005 passed by the Additional Sessions Judge & Presiding Officer Fast Frack Court I, Davangert in SC No 56 of 2005 acquitting the respondent accused ol the ftenees punishable under Section 302 md ‘307 read w4th Section 34 IPC The appeliantstatc pi iys fot I settmnR asid the said judnwnt 2 Crirnii 1 al Appeal \ 2 t62 of 2005 i lii d i id S etion 3 8( 1) mcI 3) of (ode ci ( rimiiii1 Pm I ire It ii ] bc 1h se od uscG igiimt th urv u’I i r ci r I i I ci 9 ii) A)0 o sc d h Ci \ ldti 3 tal c c ‘ h c, . I reciiing )tti I nt 1* a ui - 4 Davangc’re in SC NC) 56 of 2005 convictIng him of the offenc vs punishabk under Part II of Sec tion 301 IPC tnd stnttnt Ing him 10 undc rgo rigorous impnsonment for ten >ears and to pay a fine of R%.5.000/ . in default to undergo simple imprisonment for mu month. The appellant accused has preferred this appeal praying to %et aside the said judgment and corn ft lion. 3 The t untrnts of first information n-port (ExP29I are as under: MarJappa %/O Goni l3asappa. aged about 30 ye irs agriculturist resid ut c’t KadaJji village Da angcre LctltLk iici’i kidgtit a tuniplahut on 27 12 2004 rt l.’t pm Its content clisclosc that on 27 12-2004 at (.00 nii, complainant Manjappa aent t’ ii gfihuril hulL 1 11 Lit tit i liii 41 ‘i )iollft i 1w xl ippi mc c f a aki di, c cn Mci jcfl i ‘F c ‘i ii r Ac if! T%trqji qr t i d km u n1’ h. 5 has dumped weeds near his land For that he told that ht had not dumped weeds. Then 111% hi other sent Maujappa u lii’ house. iliereaftei his elder brother Keneliappa and himself were pre ceding at 9.00 am near the ranal. Manjappa. Nagaraj. Siddappa joined together and abused Kenehappa in filthy language awl assaulted him by means of a club. They assaulted his elder brother Keneliappa on his head and also on his hands and legs Complainant Manjappa went to rescue of Kenc’happa. Then acx used assaulted turn by mean’ of a club. Accused Siddappa bit tile complainant Consequently. he sustained bleeding injury By tint lime residents of the illagc namely Panisappo s Kencliappa Potharaja sb Kti 1 chapp i anie anti i)a( died tii’ quarrel 11 • he ann lalnati. it_c u’ brother Ffnrh t ) n w. •r sififti t- ‘I ec 1) Ci i’ H i I. Xi ntlL,(TC Ifl liii autoilksil’k’i4 6 4 Investigating aencv has laid charge sheet against acci [Se(I os I To 3 ftw the olièiwe puiiishahIt under S(ctl( us 114 307, 302 nw 34 IPO. The nntents ol iht charge shed discloses that accused deceased kenchappa and omplamant Manjappa were’ brothers. Then was a dispute amongst them in connection with pathway of an immovable property Accused borrowed in a sum of 25,000/— from K.enehappa and that amount was to be returned and in this regard Kenchappa used to demand the accused to repay the loan. Accused had not repaid the loan amount In this regard whenever accused used tu pass through the land f Kenchappa Iherc ised t h quarrel b tw en ih iompiainuit hi eldei broilu i Kelkhaf pa tiid Ii C at vust d. Kcnchapp;t aT-c uccd to ihratut 11w at iit’d I Ia aç i p 3 1 Ii u It 1 s iicl In II ‘s r w jot h n ni T-. r%t ‘T1 ‘1 tni F 7 It Is further stated hi the charge sheet that on 27 122004 at about 600 am, fl4s I and 2 and the deceased Kenchappa ‘acre working in the agncuhural laud Accused No 1 had dumped weeds md ni this regard there was a quarrel between Kenchappa and thc accused. On the same day at 900 pm, first and second accused armed with clubs and with an Intention to kill Kenc-luappa. were waiting for CW% I and 2 As soon as they- came there, third accused instigated other accused I.e.. accused Nos. 1 and 2 to assault Kenchappa and others At that turn accused assaulted Kenc happa and complainant Manjappa. Third accused caught hold of Wi mdmid hun c iallonthegrctndmndbut )ntne right hand Thereatitr mjurt d Kin .‘happa i-did Man ppa rerc hift I to (0 li sputa K cht 3d . S n rjt 1 ulftin inubi to r!rm ii unjurat s K-tg 1iap. ‘icd nn 2’-) 1 2 2(’O 4 a ..,be.tt ii I 8 5 The trial court framed cliaages against the ae used I to 3 for the offenes punishable undei Section 302 read with 34 IPC Tht ae used pleaded not tu1tv 6 In the trial court, the prosecution has examined in all 30 witnesses and got marked ExP1 to 29(a) to (e) and Mos 1 to 3. On hehali of the accused, ExL)1 to 3 wen got marked. 7 PWs I rnd 2 Sannappa and Hiifhengappa are witnesses to spot panchanama. These two witnesses ha’e turned hostile to ih side of the prose ution. othng is licited iii their cross u\aminatiori o djsbelie I heir cvidcne. La a ra1appc t i, deoos d fnir h iad n t he hnspitnl t SC( h Inad horh Of Ken h i I)ca1 both in the mo iiioI nqnes nandn Izurra S f’)1 1 ](I (] 1;f [\f J1 inr. 115 9 examination, he states that he does not know as to whether RxP2 panclzanamn was written in his presence 9 PW4 Rvanappa h s deposed that h know accused 1 and 2 He also know deceased Kenchappa and complainant Manjappa. He has d posed that he does not know the transaction between the accused and the deceased and also he is not aware of anything about the accused using the land of Kenchappa He came to know that Kenchappa wa killed I)uring his C ross xamination he has denied the suggestions put to him o PW Muni appa leposed that he knows the SC d Appioximite1 si m of 000/ i t he i n in d a Inc lir i I n i a I 10 he staled thai he does know whether Siddappa owed a sum of 25JiO0 1 ’ to Kenchappa. 11. P\V$ Manjappa has deposed that the viiiaers used to talk about the transaction between the accused md Kenehappa The amount was 25000/ 12 PW7 Dr Shivaprakash was a medical officer at T3apuji hospital, Davangere. He has deposed that he was workinQ, as Senior Superintendent. That on 29-12 2001 he sent death intimation as per FxP3 13 PW8 Srinath S H wa doctor tt ((i hospital Dvangere lie 1i-is depned t1ir in 29-12-200-1 he onib etcn post ‘nc)rrein e\amrIaIioIi ci Kcnhappa. P orlrr d Ct x r 2 o am 3 ne thn p11t I tI at in ause f ah i d 0 jr; 0 ocn. fT i-i asc ssutl TP5 ,s rnnrrco t or 11 1 4. P\V9 Dr H I. Vijava is inoihr doc’lnr Of CO hospital She has deposed hal on 27 12 2004 at 10, 15 am she examined Kenchappa. H was adrnitftd to hospital with the history of assault, Injured was COnSCiOUS. There was an injury on the head. The injury was one inch in width and it was a fresh injury. On the same day, she also examined injured Manjappa at about 10 51) am. lie had come to the hospital with the history of assault, lie has sustained simple injury During her cross examination, this witness states that Kencliappa had com along with Ilun tiengappa Sh has nol mont lOne H the age of the injury. 19 P\kTi 1) P R P! ahhdkar was Assistant Enineei ‘n I Fubii’ Wo’ ks DepartiuitrI, H luas deposod tluar hu Has i)rcpar d th spc pain Ilanalna ExP% lie S ailiod his inature on ho snnt pmi hananni ci j;o EX P. Siaj I I I r 12 16. P\V1 1 Hanitmanthappa f)\Jr 12 — Kotraiah and PW13 Murhendraiah, are eve xvitncsses. But they have turned hosnh to 1h side ol the prot- ution, Nothing is elk ited in their cross e\anunatlon to disbelieve their evidence 17 PW14 K Suresh has deposed that accused had borrowed money from Kenchappa The loan agreement wa shown to him He has affixed his signature on the loan agreement as per ExP 13 1 Ic came to know that Kenchappa had died Durint his cross examination this witnss stated that 3mongst the accused, he los not kiinw xvlrn hnrTn\ed the amnunt from Kciichapp and thit n this aoeui, he cioc.s nol knut the contri ts of nvPi3 I 8 PV I 5 S r 1ia ,/o B K Si 1da1inppa is ‘t I oiuhie. I Ic has arried the F JR on 25 1 2 I Fr F 13 2004 and handed over the same to the Jurisdictional magistrate. 19. PW1O Sathi%h ‘peaks about the Incident that had occurred on the morning hours i.e. 6 am on 27 12 2004. He has turned hostile to the side of the prosecution. Nothing is elicited In his cross examination to disbelieve his evidence. 20. PW17 - Hanumanthappais an eye witness. This witness has turned hostile to the side of the prosecution. Nothing is dicited m his cross xaminatlon to disbehn e their evidenx ( 8 ‘imippi ptls c f h lie has rec t 1 1 ccution g i, (Ilcited ) p4 T jg Anil R I trial on 30 12 2064 . n I’ )tS t;t tot ) 1 Dr ttiig . h;’s I I: VII I I 1.4 instructed him to arrest the accused, Accordingly, he arrested the accused from their rcIaties hous and produced before the ircie inspt’ctor of police. 23 PW2O Potharaja has deposed that there was a dispute between the accused and the deceased in connection with a pathway. Third accused has borrowed amount from the deceased in a sum of 23,000/ and tho same has not been returned In this regard. a panchavat was convened in the village, In spite of i. he did nol repay the amount He further leposed that out 8 months pitor to hi’ leposition at .-ihonf 9.00 am. near uhe criishin ard (if Shi iandappa. ii i iated near iw c anal, ac(ued I to 3 s z g Thir ecu e I va s ttiW &, md, oth uc en u ci olding lubc, I Iit ahim’e’d 1lem n filthy i:prnIiae. by eh:-u1 T1IYI( j p dUd nia 1 turn ei e t t fur r third accused instnated the 01 her accused to assault Kenchappa and Manjappa. Al that time, accused 1 and 2 assaulted on the head of Kt-ia happa by metuis nf clubs, Consequently Kenchappa sui stail ted injuries to his head and fell down Manjappa was also assaulted by means of club, He escaped from the spot He further deposed that deceased Kenehappa s brother es aped from the assault Third accused hit Manjappa s hand 24 During his cross examination, this witness stated that polic ha eorded his statement, lie has not seen the ac used horrowint 2F,OflO/ I-Ic has not I participated in the panchax at lie ‘ieai iv admits m the I (‘ros—E\amI1IatIo1 1 thai he did nor snw the t ill.-rers I darh fl d at the spot au cr the butlt F’ ep tird. I Kichaona and Ins hneht Mrii1 ])J) ncne ni ht I viiiac1 cr or-’ in :0 th spot H to’d ir F F 16 election. At that time opponent was one Narappa Accused supported said Narappa. This 1tness has cleans admittc d Ifl tilt cross cxamination that accused Nagaraju assaulted Kenchappa at tht first instance and on his head. He did not count as 10 how many times accused assaulted Keneliappa. Thereafter, accused Manjappa assaulted Kenchappa Consequently, be fell down. 25 PW 21 Thippeswamv - is a police constable. He has deposed that on 29 12-2004 at about 10.00 am, as per the direction ‘,f hi’ superior officer. he handed over the dead body in the relatives ni the deoeased ifter fir j tyit nexnna)n k rod e h ir ii punchy ci the derea%ed lx fnre the tnve%tlgltIlIg officer and tin v ‘vev- marked a Mcs I -md 2. TA 2 itaijz is i d et dt 1 v,%d th.tt hr Ln’j’iv’ thr .lrct 4 scd b.w’;i (j fll(.flt”S I It I I 17 prior to his deposition. at about 6 am, he had been to the a&ricu1ti’ ral land \1oiu with hi iii. his elder brot her Kc-nchappa came thert Aclja nt to their land, land f accused is situated. First ac used Manjappa as also present. Said Manjappa came there to teed water. At that tim first accused came and questioned as to why this witness and Kenchappa dumped weed in his land For that, they replied that they have not dumped it. Then his el(ler brother advised them not to fight. Then, first ac cused abused them and went to the house They also went to their hOuse, He further deposed that near the crushing yard of Shivanandappa. third iC used Siddappa instigated a c used md 2 to assault Ii broth Kcnhppa The a muift ( us thei n hi head and shoulder He mveir t’ rescue iiis oroin r use misc as mlt d lmi ulde Phir ens nil hi. d as an ha j ca r 1 en-i i’n i l1fli’. T c,. ‘lid! 18 When he was in the hospital, police came and recorded his further statement 1h reason foi the accusd to assault him as that th thud accused had horrowc d a sum of 25,000/ from his brother and it has to be repaid. In this regard, there was ill will between them Besides, accused used to proceed through their land. In this regard also accused used the land as pathway and in this rgard thre was diffrence of opinion They also used to protest that in case if accused pass through their land their crops will he damaged In this regard. then usd to be quarrd his brother asked the a( eused to rep iy th loan imount and in this r gard there used t uirrel His brother iskd the a cused I ea h. n t i n h I n C It 19 Kenchappa. lie does not know when he lodged the complaint. This xvii ness clearly admits iii his cross cxaminaflufl ii para 9, to a question as to whjch accused assaulted whom for that he slates I lmt Nagaraju assaulted deceased Kenchappa on his head. waists and left shoulder. He does not know how many times and on which part of them the accused assaulted, This witness also stales that there were no weeds dumped on the land and he does not know whether there was a quarrel in this regard ccused 1 and 2 also assaulted deceased but h cannot say how many times they assaulted When h xvent to the rescue of his brother, h xv is bitten he nix ident t ok plac. a d ) l ix xr clapj a ti cana C rnmox aM )( mm I n cm happ not Mcii dix I hax e bt n ister€ (1 ut also stat crc was hustle, Pot 11< r ti md am tin t pt i o m C 1€ r ft 20 that ExD 1 Is to the effect that his eldet brother Kenchappa has lent 25.000/ to third accused Siddappa 1k eleaily admits that he has not tated before the police as per Ed) 1 28 PW23 BasavaraJappa has deposed thit police obtained his signature on ExP2. This witness has turned hostile to the side of the prosecution. Nothing is elicited itt his cross examination to disbelieve his evidence. 29. PW24 - Hiitchengappa - i.s an eve witness. but this witness has turned hostile to the side of the rosnution 1othmg Is elicited in hi ro,s nunpinatiop to disbe1iee hi” t-vlden e 30. 25 I’aru’appd l)Pb uepr.s(’l mar he a. rii.,c.t. Main.ipp.i .ind Kc;i.’haq 1 i A, iii nc sir iof I p I 21 u) their land, In this rearcl there was a dispute. Kencliappa and Sicidappa have fliOl IetarV transactions. Tie ba, alSO stated I ha at that time. act i iscd were present near th crushing yard ol Shivanandappa and he advised the accused to he peaceful and saying so, he went awa. This witness has also turned hostile to the side ot the prosecution. During his cross examination by the learned public prosecutor. this witness clearly admil s that the crushing yard of Shivanandappa near the canal, the accused were present. He also stated that Kenchappa was taken to a nospital at Davamere and unable to re over from th injui. he died During his i oss exarninanon he t te hat he I s gi en late e o ore h€ poli ( 31 IVy 2 Flalamma e iih i d I KenL hitp ha Ic that sht ‘hc n ust 9. A ctp,t 9 lai id i at 10 her land. Atc iii 9 22 months back at 600 a.m. her brother in-law had gone to agricultural field. Thereafter. her husband weiit to the agricultural land. Ac C used was present In his land Manjappa enquired the accused as to wh) they were putting weds In their land. For that. accused No 1 replied that they have not put any weeds. There was altercations between them At that time. accused No 1 told the other accused to go away fiom there Thereafter, she went to the village. She further deposed that at the outskirts of ShIvamands Cmshhig Yard, accused Nos. 1 and 2 were standing. Accused No.3 was also thre They abused them m filthy luiguage ISceused Nos. md 2 assaulted on tix head )f Kenchappa 1w mcans of (lu)) Kenchappa cned md fell on thc 2flflH1(l 22 injured Manjappa went in rescue CL osi 2 th m N ite i ippa. cii K n napp on soun ‘11iaer% çatt’er’i ‘lure i1’iI alb nquit-ri ‘Ianivippa 23 was shifted In an autorickshaw to (‘.GJIospltal, Davanagere Her husband was unconscious. At 4.00 p.m. her husband wa’4 admitted to thc Bapuji Flospital. On the ne’ct day her husband expired. She furthcr deposed that accused No.3 has borrowed Rs.25.000/- from her husband. There wa a dispute between the accused and her husband In connection with putting of ed’ and also using the pathway by tlu accused. 32. During her cross-examination she states that her husband’s brother Manjappa was residing In a separate house. She denies the suggestion put to her that she hip tstateL. nerlivD Aqnestinnu puttnhe as to ho assaultcd hc r husband. For that ‘lu states that ‘agarajappa assaulted her husband nd Manjapp€t sat t d hi al Sh K lvs es ht aO exarninatlo;. ilidt ,,‘au1t titli t4j the rn’ddk 1 ht hear’. i a r i 7 24 assaulted him, Clothes of her husband were blood stained She clearly admits in her cross examination that her husband and Potharaj ere brother s son 33. PW 27 M B Malappa has deposed that on 29 122004 at about I L00 am. h vas summoned to the police station and police showed deceased Kenehappa s shirt and panche and they were seized under ExP 18 34 PW 2$ is one Golasangi Investigating Officer He took up further investigation of this case and rec orded further tatemc nt of the complainant rnd he sent ‘i equisit on to the 1erned Magistr’ite t idd Setion 30 f f( 1k f as urth i 4 p s d ht n 39 004 h en at I spit 1) i c-s a 25 35. PW-29 Pampapathi is the Circle Inspector of pollee He took up further mve’$lganon from PSI (Iolasangl on 29.12.2001 He ptnied the iccorcis Hi conducted the Inquest panchanama on the dead body of the deceased Kenchappa. During the Inquest panchanama, he recorded the statement of Halamma and Revanappa. He examined the dead body and found 2” wound on the both and It was In U’ shape. He also found that there was 9” stitch. Lower lip of the deceased was swollen. He sela’ed the appaiel of the deceased Ek recorded the statement of the witnesses on 30.12.2004. PSI €tnd supporting staff produced : ic i ed Na to 3 tIc subjectc d them to judicial custody He als’, collected pahani. house extiacts of the land in c-p nIt n Hi write let ci in’ I ihh iork Dcam t rp ‘heFch °r oftfcc On V4 2 2u05 1k sent dub to Il-K Mc dk at (flfwt r lot en dl d n hpi n I oL I I $ 26 the Indemnity bonds of the loan amount of Rs.25.000/ Ibis witness was cross ecamined by the learned defence counsel T)unng his cross cxarnmaiIon he speaks about omission to state the matenal facts by complainant, lie states that he has sent one club to the Medical Officer for examination and opinion. 36. PW 30 TJingappa Is the retired Asst.Sub Inspector. He 1mb deposed that on 27.12 2004 when he was ineharge of the police station, at 1.15 p.m Manjappa S/o.Gonibasappa came to the police station and gave a complaint and on the basis ot that he had ngittcrnd a (assh Crime ‘v °7/2004 fit- prepared xt29 II ni en hc me t h b Mapstrth I ur p his .. 0 s ximliht n ie state that Kenullkppa Wii% TiOt h ..i iii condition to speak wnt-r M.iiij;ipp ‘ ann In flit’ police ‘tcttion ii ias