IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 16TH DAY OF' JUNE .
PRESENT A %
THE HONBLE MR. JUSTICE?
THE HON'BLE MR.
CRIMINAL;'T§:1?PE..¥\i€Nr®':._VIT.ui'85/2di§f3
IN CRL.A.1185]?-{3ii315.::".
1. STATE EVA BAE2;LES3fi)vARA
POLICET.S'FATI()NT._ APPELLANT
T [BY :ADIURADflA__Mv DESAI, APP)
E. SANNASIDDAPPAGOL
@"«.I\r£A_NT1IR, AGE 42 YEARS
OCC; AGRICULTURE
" K§;§SHNAP?A
@ KR§SI~:fNA?PA SHASEAPPA BIRADAR
% AGE 38 YEARS, OCC:AGRICUL-TURE
3. PRAKASH MALLAPPA SHIRABUR
AGE 33 YEARS,
OCC: STUDENT
R/O DEVARGENNUR APPELLANTS
{BY SR1 SHARANAPPA MATTUR, ADV.)
AND:
STATE OF' KARNATAKA
BY SPP. I O
(BY SR1 ANURADHA M DESAI, APP}; I
THIS CRIMINAL APPEAI;--IEE1F=I.1I,ED' U/'S, 3174; CR.P.C BY
THE ADVOCATE POR THE AGATNST THE
JUDGMENT DT. 25.1.2006 PASSEDRSY THE 'P.O., FTC--I,
EIJAPUR. IN S.C.NO.82'/'~Q2--CONTy'I.C171E\TG~ THE APPELLANTS/
ACCUSED POR THE OPPEAICES' 2P/CUE/SS 302 OP IPC R/W
SECI49 OF' IPC, .143 RV/W.S'EC'- 1419 OETPC, 147 R/W SEC.
149 OP IPC, 14:8*QF_vIP(l?_ R/W S.EC.149 IPC, 504 OP IPC
R/W SEC 149_.O.F 506(2) O.T;IPC R"/W SEC. 149 OP IPC
AND SENTENCING VTHEMQTO VHNDERGO RI FOR LIFE AND
TO PAY AMPINE"OE,_RS,,_'T500O/.+._EACH I.D., TO SUFFER RI
FOR A PERfODf'.QF7fT'H_REE MONTHS FOR THE OFFENCE
P/U/S3392 OF VOIPCSR/W SEC 149 OP IPC AND FURTHER
SEN'TENC'§1'JG' THEM TO SUPPER R.I. FOR PERIOD OF' SIX
OFFENCE P/U/S 143 OF IPC R/W SEC
14?} C113' &IPC"'-AND-.F'URTHER SENTENCIN G THEM TO SUFFER
R.I 'FOR A 'PERIOD OF ONE YEAR FOR THE OFFENCE
P/U/S... I47 OP IPC R/W SEC 149 OF IPC AND FURTHER
_E*~--._'__SENTENCITǤG THEM TO SUFFER R.I. POR A PERIOD OF 3
'-.'¥EARS FOR THE OFFENCE P/US 148 OF IPC R/W SEC 149
OP IPC"'AND PURTHER SENTENCING THEM TO SUFFER R.I.
FOR A 'PERIOD OF SIX MONTHS FOR THE OFF-'ENCE P/U/S
" 7j;-S04 OP IPC R/W SEC 1.49 OF' IPC AND PURTHER
SENTENCING THEM TO UNDERGO R/I FOR A PERIOD OF
TWO YEARS FOR THE OFFENCE P/U/8506(2) R/W
SEC. 149 OF' IPC. ALL THE SEINTENCES ARE. ORDERED TO
RUN CONCURRENTLY.
THESE CRIMINAL APPEALS COMING ON FOR
ADMISSION THIS DAY, KSREEDHAR RAO J, DELIVERED
THE FOLLOWING:~ I
JUDGMENT
Since, Cr1.A.1185/2006 and S24./S2006grésggd%£:m§,o1>yI;Iie;.
same Judgment, they are heard
disposal.
2. The case of 1:ifroseVeutien’.ydiseioses that one
Bhimappa Biradar._(deeeaSed}=.had enmity with
1\/Iansani*._faIn1’i’r and..y4Sir*t’bi1’r’fami1 , since the members of
Sirabur had caused murder of grand
~fathe1’_~df deceased_,____That apart, because of politicai rivalry,
,er1m1’ty”~wa.s”‘intensified. The members of Mansani and
Sirabn’r”fanIi}uy’j_ virtually pitted against the deceased and
‘7»,.,___th.ey weretpreventing the deceased from carrying out any of
.’_thVte deeds for the benefit of the village.
&/
3. On 15.09.2001 at about 10.00 am, the deceased
was sitting on the platform of the Village Well. The of
the deceased) was getting air blovxm to his the
shop of PW. 11 situate right opposite to
PW.4 [grand daughter of deceased)’ Carlie and’
deceased that he is wanted house. got
up to proceed to his that Vii’;/ianingappa
Sannasiddappagol (A11 v*:’.E1’ippanna Ningappa
Kundaragi (A131 Kundaragi
(A14) Wielding @_ ‘ Kristappa Shashappa
Biradar Jagappa Mallappa Biradar — A16
Wielding V”;’\/:i:a1«1appa Shirabur « A17 wielding
chopper and Shashappa Biradar — A21 wielding club
frorn side of the well. The deceased tried to
rt1’n.v_V.0’.0’a.1’jove accused persons caught hold of the
deceas’ed.,.._”I”ne”” deceased sat down irnploring not to assault.
-. A~–__13 VV&¢A~ 14 assaulted the deceased with axe, the fingers
hot’ the ‘hand got cut, severe head injury is caused and the
0 “‘..de”Ce0ased fell down. The A1, A15, A16 and A21 dragged the
deceased to couple of feet. The A13, A14 8:. A17 again
assaulted the deceased. The above accused threatened the
bystanders with dire consequences, if they intervene to rescue
the deceased. The A2 to A12, A18 to A20, A22 ts
running to the scene and they assaulted
hands and kicked him. All the accu’se’d« pgersopiisdaifteir-ggssaultfg
Went away from the scene
them. 8 It h V 8 it 2
4. The PW1 to eyeflvivitneisses to the
incident. The PW]. by about to Babaleshwar
PS. The duty at some other village.
Mie polics’–,g8nstab1e.’.ife}aort_s”the matter by wireless to the PSI
and ongthe ins’tr:uct~ihon.’0f 18, some police constables are
deputed’ to’thegviliagemtio maintain law and order. The PW.1
complaint Ex.P.1_5 P.W. 18 registered it as
it FIR. iP’i?V.1.8’viAs’ited the spot for tracing the accused. All the
:”.v4.4acjcused were arrested on different dates within a period of
of days. The PW.17»~CPI, took up further investigation.
it Voluntaxy instance of A13, A44 8: 191-17, caused
recoveries of the blood stained weapons used for commission
of offence under a rnahazar. The blood stained clothing of the
deceased and the weapons are sent to the F SL. The EX.P.16–
serology report and FSL report reveals that the h1’o?o’d.stains
found on the articles are stained with human it
5. The accused are chargedforo commfitiiig ‘oifen~cesf it
punishable U/Ss. 143, 147, l48, ll
r/w 149 IPC. The charge u Partlll
is redundant and superfiu_ous’t~rsincle;._acclus’e’d”are charged
for commission of the higlherl same genre.
6. upon consideration of the
evidence, l:1E£S”l.l1P():l.,’I1″1Cl:” thatv.A–l3, A–14 & A-1?’ are guilty of
302 IPC. The presence and
paertliei-paiiloii._goff’Al-:*1, A45, A–i6 & A–2l although held to be
l proved;.. the court comes to the conclusion that they did
U deal any blow and their actions in no way contributed for
of the deceased. Hence, they are acquitted of the
it In respect of A-2 to A–l2, A–l8 to A–20 and A22 to
A24, the trial court holds that the prosecution Witnesses do
not attribute any overt acts to them, their presen«cTe’.,A’and
participation in the incident is held ‘lIe_’i1ce,4_
acquitted them.
7. T he convicted accusec1.»’:’xV/i2::”;A.A,_l Al: 14 ” 7 0
have filed Crl. A. No. 824/2ooe§ha11efigmgthe £:a.§:iv1¢fion for
an offence U / S. 302 r/W-1 49 lPC;~.
8. The has filed 2006 in respect of
acquittal of 1* for an offence U/S 302
IPC. not challenged the acquittal of
remaining to A– 12, A»18 to A-20 and A-22
ttttt
B. Naik, learned Senior Counsel
appeja;;~mgr5lrA91 A- 14 82 Ad?’ (Cr1.A. 824/2006) submitted
the fol.l”owinVg”r4easons to assail the order of conviction:
” *i)_ l”lThe FIR allegations do not disclose that A~l7 is in
the company {if}, A-13 to A16 and A~2I_ who
ii)
9
caused assault on the deceased in the first phase
of the incident. The rest of the accu.s’ed7.._caIne
together to the scene after the
assault. In the second phaseHof~..ass_a.1i’lt;”A:l–_g1V7–._
wielding chopper along :WiT.h’A2 to it
and A.22 to A24 camezhto a 0′
blow with the chopper Vonl’ the 2 0 The
evidence of PW1 to WhoV”areV”tlVie eyewitnesses
to the incident.V_hoWeife’1’i.:’indicts that PQ17 was one
of the particip’ant the first phase
of assault on,tiie« A-1, A13 to
A&6&fi%Lggwag”+_5
in false implication of
innocent_ person-s___o–f [the rival group Vindictively in
xVthe rte and as mmfl1in.the evnjence.’The PWV2 my
PW’6valsVoV~.fai.sel3?l implicate all the accused named
the “FIR___al.though no overt acts are attributed to
Vtlieni, and there are no corresponding injuries on
ideiceased to correlate with the manner of
“‘ i ,iii)
stated in the FIR and the evidence.
he PW.1 in the cross-examination done on
10.03.2005 at paragraph-2’7 states that when he
Went to police station to lodge complaint, the PSI
was not present; the Havaldar was present and
%/
iv)
10
he (Havaldar) enquired about the incident. PW.1
orally tells the Havaldar that “the r_ne_ral5ers of
“Mansani and Sirabur family have_;m’u.rd.ej1*ed4’~my
father”. The PW.1 if really hady’l”-vyhitriesseci..,4t’he.._._
incident, he would have “m.entioned» ‘._the–f}fa”r:1ilyj’.
names of other accused-‘ f?”\Fv”.1 l
and concocted the*’1″:a_vmesl*of’ the iwho
not belong to Mansvariiand lS*irabur The
PW} has fa1se_l_y ir11′;’j’1iegg’jAtt$;h{‘js-…1;};e «accused persons
belonging toll’ vindictively to
harasshwthhemy’ the persons
diflereritvvlliéairiilies like Mansani,
Si}’abi_ir.:. V. V. and Saddappagol,
~ ” six/iantur aijid Korti liavetieen implicated.
llinyjlthel stated that there is enmity
hhbetyveen’ihisllfarhily on the one part and Mansani
and Sirabur’ family on the other part. The enmity
other families is not stated at the earliest
V’ ‘V gliointfof time.
., The FIR is registered around 12 noon and the
“same is entrusted to PW.14 at 12.15 p.m The FIR
is submitted to the jurisdictional Magistrate at
6.45 pm There is a delay of almost six hours, even
vi)
ll
though the distance between of Babaleshwar RS.
and Bijapur is hardly 20 Kms.
PWJ4 states that as he was suffering from
dysentery he went home to go to toilet, after four
hours of entrustment, he went to Bija,’;’jur–VV’and
handed over the FIR to the
evidence of PW.14 is quite artifi_c.iall_:
of six hours in forWarding'”the”«._Fcourtm
becomes highly sigriifilcantl” _
manipulation and ‘false implication accused
who do not belongllltol family I Mansani and
Sirabur.
Thelelx-‘i,de_;tice”onreeord discloses that the deceased
‘wast aV.V_lnotorieu’selement in the village, had
incurred’ ‘;en’1nit’y with several sections of people,
E__:’lie_ was’~s.exually harassing the women of the
village__ and there is every possibility that the
it village-i**s went to the deceased to discuss and warn
v_.-lii_rJf1.Alln the heat of discussion and quarrel the
‘~ incident has taken place. In the circumstances the
V offence would not be U/s. 302 IPC. At the most, it
may be U/S. 304-1 IPC. The conviction of A–l3, A-
14 3: A-1′? for offence U/S. 302 IPC is bad in law.
%/
1’)
10. Sri. Ishwar Choudapur, Advocate submitted the
following reasons to justify the acquittal of A–
and A–21:
1) The FIR anegauohs Zfilisc-less: a;*$hve’t-his J
accused were wielding cluhls-t thejflconie ifannirig
along with A–l3, A– A-“17;.Vth,e’;:r hold for
the deceasedzwho wasvvierarining away; ..A–l3 and A-
14 assault tl’1e7aXe on the head.
Awl, A–l5, A–‘lr6,:and.”VA-f2 assault with the
clubs they deceased to some
overt acts of assault with
;,:_ “‘l’hreV’_,=irersion is artificial and
A-1, A-is, A–l6 & A–2l were
2″present.VVat:.l:th,e’ assault, they too would have
assau’lted}. clubs. Their passive conduct
» V _xappear”s”to._.brev preposterous.
V elefiidence of PW.2 in the cross–examination
. A that when the deceased was running,
A13, A14, A~»l6, A-1′? and A–21 caught hold
deceased, he was grappled and made to fall
down. Thereafter A–13 and A44 assaulted the
deceased with axe. The evidence of PW.3 with
regard to manner of assault is totally inconsistent
1.4
11. In the light of the evidence and submissions made
at the bar, the finding of the trial court that A-1′? Wasone of
the participants in the first phase of assault “A-1,
A–l3, A»~l4, A–15, A~l6 and A~21 appears’1V:””toV’1o;e that
prevarication and inconsistent with theulearliest ‘v.ers1’o_n the7.._ ‘_j
FIR. The recitals in the FlR_4_”disclose
chopper comes to the scene A~l8 to
A~20 and A~22 to A–24:g_{fter held deait deadly
blows on the deceased_..an_dV. A16 and A21
Wielding moral support and
threateniing’lithe?bysltarideirls. “lfnellllevidence of PW 1 to PW.6
implicate 11A~vV17 as ‘t-he’«assailants along with A- 13 8: A-
14 who-caused deadly Weapon like axe in the
‘firstsVpiiestefef assaultmallong with Aml, A–15, A~16 3: A–21. If
assailant in the first phase of assault,
l_3W–l “would. have omitted to state this glaring fact in the
Merediee, when he names A1, A15, A–l6 and A~21
1_1against°1whom no overt acts of assault is attributed. In that
%K
15
View, the order of conviction rendered against A17 does not
appear to be sound and proper.
12. It is sterniy argued that the Ami,
A–21 are falsely implicated, since in the
stated that they were wielding in}.
commission of the offence. The.4overAt”.a_’cts tgoiuthern
are only limited to dragging andthrefatening the
bystanders. if really’ “pdreser1t and
participated in Commissioriiof they too would
have dealt blows conduct at the
scene is it is said that there are no
corresponding.’injuriesAonthe deceased caused by clubs.
~ ., A :,,,”j’fie.1ogic above argument may appears to be
o:r1.–:a deep scrutiny of the evidence we do not
think ‘that.._”the:conduct of A-1, A45, A~16 and AW21 appear to
artiuficiaifias argued by them. in fact, A1, A15, A16 and
clubs come aiong with A13 and A14. All the
1 ‘«’.sVai_d’1accused chased the deceased. A13 and A14 deal blows
16
with axe. The A1, A15, A16 and A21 who were wielding less
dangerous weapons do not deal any blow, but they ‘moral
support to A13 and A14. They also indulge
deceased to some distance after A13-«anzfl ‘.ass’aii1t”~wthCT
deceased with axe and threaten
the rescue. The fact that “deal yin/ith
clubs is not a ground have been
falsely implicated. against
A1, A15, A16 andilfl.’-21 that they are
the members asysernbly sharing common
object _
14. of bystanders including PW. 1 who
do no_t’-to the re’sc1._1e.of the deceased does not appear to be
.’uLr111atu.ral.,47because the accused were wielding deadly
weapons antlsigiiring fatal blows to the deceased. It is quite
_r1a_tural the bystanders would not risk their lives in such
4._sit”uatio’n.
17
i5. The trial Court has given a positive finding on the
basis of the version of eyewitnesses that A»1, A~1E5}’-TR-«.l’6,A’and
A–2l did participate in the first phase of assadlt, ‘
them for flimsy reason that they didnotydel-_al
deceased. The reason given by
wrong. The evidence on recordircateg.o1<jgal1y'_= their
active participation VVith__fi from the
beginning. Their overt dragging the
deceased to 14 and threatening
the that they are the
each one of them would
be liable floruvtlie acts U / S 149 IPC.
E"l:'The,__discrepancy with regard to overt acts of the
by Sri. Ishwar Choudapur are only of
V t1"iVial"–nat.ure,'lsuch "discrepancies are natural and bound to
l"<Toccurl_.whe'n the witnesses are called upon to give evidence
with regard to the incident which has taken place about 3-4
"-«years prior to the date of evidence. Such discrepancies would
43/
I8"
not dent the veracity of the evidence rather they would lend a
touch of credibility. otherwise branded as parrot like
narration.
17′. It is strenuously argued that PW~ I
R8,, tells the Havaldar orally that
Sirabur family have caused the his
there is false implication of ‘do not
belong to the said families…
of the above contention,
we feel that no serioiis Viinlportance can be given to the said
discrepancy. PW. been cross~eXamined at length on
:’;_th’1*ee.”different,_ occasions and his evidence in the cross»
eX’2’mi’i_1ation._lis.ll.l”Vqtiite voluminous. In the first instance, he
orally””states’t’o Havaldar cryptically, when asked to give the
“l.v.4’c9iinplaint”‘in Writing, immediately he puts the facts in writing
without going out and without loss of time. The
“-‘Mitten complaint is handed over to the PSI who comes back
19
to the PS. The written complaint is registered as FIR. The
cryptic statement of PW.l eiicited in the cross–exarn’ination
should not be read unduly to infer that none
accused viz., A~l3 (‘Sr A«l4 and the acquitted’
1, A–15, A«16 and A21 have not barti’ci;§at’ed ‘in”con9i:ni’ssion
of the offence. In the FIR a detailed Version Atlfig-…gna1nneI-.Qf
occurrence of the incident hasy_beA’en stated.”‘Thejndependent
eyewitnesses to the testified to the
incriminating acts:”o.f A– 25l.t;;’\;iv,V- 15, A–l6 and A–2l.
Therefore, we”dTo__ tin_d,__;”anVy-.” go_’od*reason to reject their
testimonyA’regarding.’;§1~es’en_ce participation of A-1, A-15,
A–l6 andx’AV–2l an unlawful assembly along
with A313 & AA!’14§.n ‘~
evidence discloses that the blood
stained. axes-.’«:’at MO 9 and MO 10 are recovered at the
iiyohiunataryinstance of A13 and A14. The FSL report and the
report disclose that the blood stained clothing of
A ‘:’..thTe”deceased on MO 4, M05 and M06 and the blood stains
_\/.
20
on items 15 and 16 are stained with “O” group blood. The
mahazar witness~wPW 8 has supported the recoveri,e~s_:.”-I11.’view
of the FSL and the Serologist reports, it
MO 9 and 10 recovered from A13 an.d___A1<5i? ar"¢.::f'11e."'one uslecltp
for the commission of offence.
20. It is strenuously ‘deceased was a
notorious person and had incurred
displeasure and of the locality.
Therefore, persons causing
the If really the persons
who are A’1’nir’nical.__towaf’d_s”«the deceased other than the
accused’ had caaseddthe rnurder, there is no reason for PW.l
culprits and to implicate the above accused.
contention that the villagers gathered at the
.¢”.,”w.e:li~, questioned the immoral conduct of the deceased and in
l.’_the”Vheat of quarrel, the incident had occurred also appears to
” untenable argument and it is not based on any credible
46/
7}
material on record. The evidence of the eyewitnesses
particularly the independent eyew1’tnesseswPW2 PW3, PW 5
and PW 6 would show that A~l, A~l3, A-14, A»lE3, A–l6 and
A–2l carried on an one-sided and unilateral the
deceased with deadly weapons. In the face of
evidence, it is untenable to argue that in a l’1’e’a’t– cjuarrel. they
deceased was assaulted and that offenjcet.wo’uld~ l3lCl4A.l3’art–l
IPC.
22. It is strenuousiyc there is undue delay
in submizssioln _theVlleXplanati0n for the delay is
artificial. the FIR was entrusted has
given evidence vthatf’ he was suffering from dysentery and
jvllirnmediately went to the house to attend the
later on he went and submitted the FIR. to
the l\/la-gis.trate”l at Bijapur. The distance may be 20 Kms,
if if if 4.ut’h_e1=e;i,s ncrevidence with regard to the bus frequency between
l.llf3:_at;aleshwar RS and Bijapur. The reason given by PW.l4
T “..th’at’lhe was suffering from dysentery cannot be rejected as
a
I\J
Ed
artificial without proper material in that regard. The
prosecution has expiained the delay in transmission of the
FIR from the 1.3.8. to the Court. On overall consideration of the
evidence we do not find any good reason to ho1dV.VV’t1i’at_ A-1,
A13, A44, A~15, A– 1.6 and A21 are
manipulation.
23. In View of the abov di._sCussion,V tfileid
the State in Cr1.A.No.1__185/2Qfj§3a__is».._Vallowed”and the A-1
{Maningappa Sannasiddappaget _A-15 (Krishnappa
@ Krishnlappai’ A–16 [Jagappa Mallappa
Biradar] A:’.2iii,[i\.?t§11..1§pp’a Shashappa Biradar) are
convicted for the offence punishable U/ S.
iiii4_3o2.V’ri;'{3i,”ij»;4i9.¢_p11:>ciH ddddd The A-1, A«15, A–1e and A21 are
sentenced-Vto._t1ride’i”go imprisonment of life.
is v””‘sFhe appeal of A–13 (Tippanna Ningappa
‘.’_Ei1inda1’agi) and AW14 {Shivappa Tippanna Kundaragi) is
%//.
E»)
U.)
dismissed. The order of Conviction and sentence passed
against them is confirmed.
25. The appeal filed by A-17 {f’rakas1f1..VV_ii\/iaiiappa
Shirabur) in CrI.A.N0.824/2006 is aiIowed_._.-3VEfhe”V.’.1’drde.rV.’of
conviction passed against A-17 is__se_t_ asidej’
Maliappa Shirabur) is acquitted.
26. A-1′? [Prakash .Ma11ei;£1;.-7uV<§1"vShi.1fab1i1*J*sha.1i§ be set free
forthwith if not required ,