CASE NO.: Appeal (crl.) 404 of 2004 PETITIONER: B. K. Channappa RESPONDENT: State of Karnataka DATE OF JUDGMENT: 10/11/2006 BENCH: A. K. Mathur & Lokeshwar Singh Panta JUDGMENT:
J U D G M E N T
W I T H
CRIMINAL APPEAL NO. 566 OF 2004
Karibasappa @ Mallakanahalli
Karibasappa & Ors. ….. Appellants
Versus
State of Karnataka ….. Respondent
W I T H
CRIMINAL APPEAL NO. 580 OF 2004
Marulasidappa ….. Appellant
Versus
State of Karnataka ….. Respondent
Lokeshwar Singh Panta, J.
The above-said three appeals relate to single incident
and are directed against common judgment and order dated
10.09.2003 of the High Court of Karnataka at Bangalore, in
Criminal Appeal No.104 of 2000 and Criminal Appeal No.384
of 2000, they are heard together and shall stand disposed of
by this common judgment.
Criminal Appeal No. 404/2004 has been filed by B.K.
Channappa (A-1) and Criminal Appeal No.580/2004 has been
filed by Marulsidappa (A-15) against their conviction and
sentence recorded by the High Court under Section 302 of the
Indian Penal Code (for short “IPC”) in Criminal Appeal No.384
of 2000 filed by the State of Karnataka against the order of
acquittal passed by the trial court .
Criminal Appeal No. 566/2004 has been filed by
Karibasappa (A-2), Halanaika (A-3), B.K. Manjunatha (A-17),
B.K. Parmeshwarappa (A-19) and B.K. Shivrajappa (A-20)
against the impugned judgment and order of the High Court
upholding their conviction and sentence under Section 302
IPC read with Section 149 IPC and conviction of B.K.
Manjunatha (A-17) and B.K. Shivrajappa (A-20) under Section
324 IPC and B.K. Parmeshwarappa (A-19) under Section 326
IPC respectively.
In all, 23 accused persons were tried by the learned
Sessions Judge, Chitradurga in Sessions Case No. 111/1995
for the offences under Sections 143, 148, 302 IPC read with
Section 149, Section 307 read with Section 149, Section 324
read with Section 149, Section 448 read with Section 149 and
Section 427 read with Section 149 of the IPC.
The trial court, after examining the prosecution evidence,
came to the conclusion that A-2, A-3, A-10, A-11, A-13, A-14,
A-17 to A-22 had formed an unlawful assembly to cause the
death of B.G. Basavarajaiah (Basavarajappa) and in
prosecution of the same, they murdered B. G. Basavarajaiah
and caused grievous injuries to B.G. Chandrashekaraiah (PW-
1), Shekharappa (PW-2), B.G. Shivamurthaiah (PW-3) and
B.G. Prakashaiah (PW-4). The trial court held A-2, A-3, A-10,
A-11, A-13, A-14, A-17 to A-22 guilty of the offence under
Section 302 IPC read with 149 IPC and sentenced them to
undergo rigorous imprisonment for life and to pay a fine of
Rs.5,000/- each, and in default of payment of fine, to undergo
rigorous imprisonment for one year. A-17, A-18 and A-20
were also held guilty under Section 324, IPC and were
sentenced to undergo simple imprisonment for six months and
to pay a fine of Rs.500/- each, and in default thereof, to suffer
simple imprisonment for two months. A-19 was further
convicted under Section 326 IPC and sentenced to undergo
rigorous imprisonment for one year and to pay a fine of
Rs.1,000/-, and in default of payment of fine, to undergo
simple imprisonment for six months .
Feeling aggrieved against the judgment of the learned
trial court, Criminal Appeal No.104 of 2000 came to be filed by
all the accused persons whereas Criminal Appeal No.384 of
2000 was filed by the State against the acquittal of some of the
accused persons.
The High Court convicted A-1 and A-15 under Section
302 IPC and sentenced them to undergo life imprisonment.
The conviction of A-2, A-3, A-17, A-19 and A-20 recorded by
the trial court and sentence imposed on them were affirmed on
all counts. The conviction of A-10, A-11, A-13, A-14, A-18, A-
21 and A-22 was set aside by the High Court and they were,
accordingly, acquitted. Both the appeals were decided by the
High Court by a common judgment, which is impugned by the
appellants herein by way of these appeals.
The facts relevant and necessary for the decision of these
appeals are that in the year 1995, A-1 had contested election
against one Shivamurthappa to become a member of the Zila
Panchayat. A-2 to A-23 supported A-1 in the said election.
B.G. Chandrashekaraiah (PW-1), Shekarappa (PW-2), B.G.
Shivamurthaiah (PW-3), B.G. Prakashaiah (PW-4),
Maheshwarappa (PW-5) and B.G. Revanasiddappa (PW-8), B.
C. Basavarajaiah (PW-9) and Basavarajappa (PW-10) were the
followers of Shivamurthappa. B. Parmeshwarappa (A-19) is a
dumb person, who, at the relevant time, was working as a
servant of the deceased.
According to the prosecution case, because of the defeat
of A-1 in the Zila Panchayat election, he suspected that
Basavarajaiah had played major and vital role in getting A-1
defeated in the election and as a result thereof, A-1 had
entertained ill-will and grudge against Basavarajaiah.
The occurrence in question, took place on 05.07.1995 at
about 10.00 a.m. at Lingadahalli Road (Basavanahalu village)
when the deceased Basavarajaiah had left his village on his
motorcycle to look after his land situated hardly 600 metres
from the village Basavanahalu. According to the prosecution,
sensing the arrival of Basavarajaiah, the appellants and other
acquitted accused persons armed with deadly weapons like,
choppers, axes, sickle, clubs and stones were hiding in an
ambush near the land of Basavarajaiah and surrounded him
on his arrival at the scene of occurrence. Basavarajaiah was
given a number of blows with the aid of weapons resulting in
his fall on the ground.
PW-19, a deaf and dumb person, at the relevant time was
working in the field of the deceased along with PW-7. On
seeing the appellants and other accused inflicting blows on the
person of Basavarajaiah, he rushed to the scene of occurrence
to rescue the victim, but PW-7 and PW-19 too were assaulted
by some of the accused persons. PW-1, a relative of the
deceased, was on the road near the village and on hearing the
cry of Basavarajaiah, he went to the place of occurrence along
with Maheshwaraiah (PW-5) and found Basavarajaiah lying
down on the ground with a number of bleeding injuries on his
person and all the accused were surrounding the victim armed
with deadly weapons. PW-1 was also given threats by the
accused to resist himself from intervening in the incident and
in fact, A-17 and A-18 alleged to have pierced on his chest
with a chopper, fortunately for PW-1 the same did not cause
any serious injury to him. Seeing the large mob of the
accused persons gathered with deadly weapons as well as the
condition of victim Basavarajaiah, PW-1 immediately sent PW-
5 to get some help from the village. According to the
prosecution, PW-2, PW-3, PW-4 and PW-5 thereafter rushed to
the spot in a tractor and on their arrival they too were
assaulted by some of the accused persons. The aforesaid
witnesses ran away towards their village to save themselves
from further assault by the accused persons. Further, it was
alleged that some of the accused persons assaulted other
villagers including PW-8 to PW-11.
On receipt of a cryptic telephone message that there was
some galata going on near village Basavanahalu, Rajanna
(PW-42), ASI, Davanagere Rural Police Station, recorded the
message and informed his superior Officer Mallikarjunappa
(PW-43) CPI, who at the relevant time was present in the Police
Station. PW-43 along with PW-42 and other police officials
rushed to the scene of occurrence. On their arrival at the
scene of occurrence, they found Basavarajaiah lying dead.
The Investigating Officer went to the village and recorded the
statement of PW-1, on the basis of which the case in Crime
No.263/95 came to be registered on 05.07.1995 at about
12.30 noon for the offences punishable under Sections 143,
144, 147, 148, 307, 302, 324 and 427 read with Section 149
IPC against 15 named and other (unknown) persons. PW-1,
PW-2, PW-3 and PW-4, the injured witnesses, were sent to the
hospital for treatment. The dead-body of Basavarajaiah,
deceased herein was sent for autopsy. Dr. R. Deverajan (PW-
32), medical expert, conducted the post mortem on the dead-
body of the deceased and opined that the death was due to
hypovolaemic and neurogenic shock. Dr. Anita B. (PW-33),
medically examined PW-5 and found injuries on his person,
whereas Dr. Prahalada Reddy (PW-34) had given medical
treatment to PW-19 who had suffered grievous injuries. The
Investigating Officer prepared mahazars on the spot and
recorded the statements of the witnesses on the day of the
occurrence and some of the witnesses were examined on the
following day. The accused were arrested on different dates.
After completion of the entire investigation and on receipt of
the medical reports of the injured witnesses, the post mortem
report of the deceased and reports from Forensic Science
Laboratory as well as from the Chemical Analyst, charge-sheet
came to be filed against 23 accused persons.
The trial court has found prima facie case against all the
accused persons and they were tried accordingly for the
aforesaid offences. The prosecution, in support of its case,
examined 43 witnesses and got marked documents Exhibits
P1 to P73 in support of the oral evidence. The accused in their
statements recorded under Section 313, Cr. P.C., denied the
allegations of the prosecution and claimed to be innocent.
They pleaded that they have been falsely implicated in the
present case due to political rivalry between the complainant
party and the accused party. However, no oral defence
evidence has been led by the accused, except placing reliance
on certain contradictions and omissions appearing in the
statements of some witnesses recorded by the Police during
investigation. As noted above, the trial court found A-2, A-3,
A-10, A-11, A-13, A-14, A-17 to A-22 guilty of various offences
and accordingly sentenced them. However, A-1, A-4 to A-9, A-
12, A-15, A-16 and A-23 were given benefit of doubt.
The appeals of the convicts and the State were decided by
the High Court by a common impugned judgment and order.
Hence, these three separate appeals by the appellants.
The learned counsel for the appellant in Criminal Appeal
No. 404/2004 stated at the Bar that B. K. Channappa (A-1)
died during the pendency of this appeal. Be it noted that one
letter dated 20.09.2006 written by Mr. Javed M. Rao,
Advocate, Supreme Court, to the Registrar of this Court is
placed on record informing this Court that appellant B. K.
Channappa (A-1) died on 07.07.2005. Along with the said
letter, a Death Certificate of B.K. Channappa, issued by the
Chief Registrar of Births and Deaths, Government of
Karnataka, has also been enclosed. This appeal of A-1 thus
stands abetted.
On behalf of the appellants in Criminal Appeal No.566 of
2004, Shri N. P. Midha, learned counsel, contended that the
trial court as also the High Court have wrongly appreciated
the evidence of the injured witnesses as well as the
eyewitnesses for holding the appellants guilty of the offences.
He also contended that, noticing the contradictions and
improvements in the ocular evidence of the injured witnesses
and the eyewitnesses, namely, PWs-6, 7 and 19, in their
statements before the Police and the trial court , the testimony
of these witnesses do not inspire confidence to connect the
appellants with the commission of the alleged offences and,
therefore, their testimony cannot be accepted. He next
contended that the oral evidence of the witnesses was not
corroborated by the medical evidence, therefore, the
prosecution case is highly unreliable and doubtful about the
time of the death of the deceased.
Shri Sanjay R. Hedge, learned counsel for the
respondent-State, however, supported the judgment of the
High Court concerning the conviction of A-2, A-3, A-15, A-17,
A-18, A-19 and A-20 by contending that there was no reason
why the evidence of the injured witnesses and the
eyewitnesses corroborated by the medical evidence should be
rejected. It was his argument that the High Court, as a first
Court of Appeal, has a duty to reconsider the evidence and
correct the error committed by the trial court. He, however,
fairly and in our view, rightly stated that though the name of
Marulsiddappa (A-15) finds mention in the FIR recorded at the
instance of PW-1, yet from the evidence on record led by the
prosecution, his participation in the commission of the crime
is not proved beyond reasonable doubt.
We have independently scrutinized the evidence of the
material witnesses in the teeth of the rival contentions of the
parties. On reprisal and scrutiny of the evidence of the
injured witnesses Shekharappa (PW-2), B.G. Shivamurthaiah
(PW-3) and B.G. Prakashaiah (PW-4), they have fully
established the case of the prosecution against A-2, A-3, A-17,
A-19 and A-20, although there were certain discrepancies in
their testimony and in comparison to the versions of PW-6,
PW-7 and PW-19, the eyewitnesses, in regard to the weapons
of offence individually used by A-1, A-3, A-17, A-19 and A-20
for inflicting injuries on the person of each of injured witness
as also on the person of the deceased. The discrepancies, as
pointed out by the learned counsel for the appellants, are
minor and insignificant. The occurrence took place on
05.07.1995 and the witnesses were examined in the court
after about a gap of almost five years. The evidence on record
further shows that the injured witnesses had been subjected
to searching lengthy cross-examination and in such type of
cross-examination, some improvements, contradictions, and
omissions are bound to occur in their evidence, which cannot
be treated very serious, vital and significant so as to disbelieve
and discard the substratum of the prosecution case. The
evidence of the injured witnesses and other eyewitnesses has
been rightly re-appreciated and accepted by the High Court
and we find no cogent and sound reason to differ from the
well-reasoned judgment upholding the order of the trial court.
There is, therefore, no merit in the argument of the learned
counsel for the appellants that the evidence of the injured
witnesses and other eyewitnesses should be labelled as the
evidence of the interested witnesses. On the other hand, we
find that the evidence of all the eyewitnesses including injured
persons is quite natural, convincing and trust-worthy. There
is no material on record from which an inference can be drawn
that the material witnesses have implicated the appellants
Karibasappa (A-2), Halanaika (A-3), B. K. Manjunathaa (A-17),
B. K. Parmeshwarappa (A-19) and B. K. Shivarajappa (A-20) in
a false case.
Having given our careful consideration to the
submissions made by the learned counsel for the parties, we
are of the opinion that the judgment and order of the High
Court holding Karibasappa (A-2), Halanaika (A-3), B. K.
Manjunatha (A-17), B. K. Parmeshwarappa (A-19) and B. K.
Shivarajappa (A-20) guilty of assaulting the injured witnesses
and causing fatal injuries to the deceased cannot be found
faulty on any ground. The evidence of the injured witnesses
and eyewitnesses finds corroboration from the medical
evidence. On close scrutiny of the evidence of Dr. R.
Deverajan (PW-32), it is clear that none of the injuries inflicted
on the person of the deceased was found on any of the vital
part of his body. As per the opinion of the Doctor, the
deceased died due to hypovolaemic and neurogenic shock. On
perusal of the medical report prepared by Dr. R. Deverajan
(PW-32), large crush injury or lacerated injuries were found
either on the chin, right leg, left knee, left wrist, right
shoulder, right forearm, etc. on the body of the deceased,
except two lacerated injuries above right lateral mallalous and
on right medial mallalous. It is true that as many as 18
injuries found on the dead-body of the deceased, were noticed
but the prosecution has not established on record that the
said injuries were inflicted by the appellants with the intention
to cause the death of the deceased. Considering the nature of
the injuries having been found not on the vital part of the
body, we are of the view that the conviction of A-2, A-3, A-17,
A-19 and A-20 as recorded by the trial court and affirmed by
the High Court under Section 302 IPC cannot be sustained.
We alter the conviction of A-2, A-3, A-17, A-19 and A-20 from
Section 302 IPC read with Section 149 to Section 304 Part-II
read with Section 149 IPC. However, taking into consideration
the time lag of more than eleven years from the date of the
incident till the date of disposal of these appeals by this Court
during which period the appellants have suffered physically,
mentally and financially, we impose a sentence of eight years
on each appellant and a fine of Rs.2,000/- each which, in our
view, would meet the ends of justice in the present case. In
default of fine, each of the appellants shall further undergo
simple imprisonment for three months.
The conviction of A-17 and A-20 under Section 324 IPC
and the sentence imposed on them including fine and
sentence in default shall remain intact. The conviction of A-19
under Section 326 IPC and sentence imposed on him by the
trial court and affirmed by the High Court do not call for any
interference in this appeal. All the sentences imposed on A-2,
A-3, A-17, A-19 and A-20 shall run concurrently.
This appeal is partly allowed in terms of the above-said
observations and findings.
In Criminal Appeal No.580 of 2004, the appellant
Marulasidappa (A-15) has challenged his conviction and
sentence imposed by the High Court under Section 302 IPC.
The appellant (A-15) has been acquitted by the trial court
along with A-1 (deceased) and other accused persons, out of
the total 23 accused who faced trial court before the learned
Sessions Judge.
We have examined the entire evidence on record. Though
the name of Marulasidappa (A-15) finds mention in the FIR
but no injured witness or eyewitness has mentioned his name
in the statement recorded by the Police under Section 161 of
the Code of Criminal Procedure connecting him with the
commission of the offence. The High Court has not given any
specific finding that Marulasidappa A-15 was a member of the
unlawful assembly along with the other accused persons. PW-
7, a servant of the deceased, who was produced as an
eyewitness of the incident, has categorically stated that when
he along with other injured witnesses and eyewitnesses
reached on the spot, A-15 had kept the right leg of the
deceased Basavarajaiah on his left leg. No eyewitness or
injured witness has named A-15 in their testimony that A-15
had participated in inflicting injuries on the body of the
deceased. The trial court has recorded a specific finding that
the prosecution has not proved on record beyond reasonable
doubts that A-15 along with A-1 (since deceased), A-4 to A-9,
A-12, A-16 and A-23 had inflicted any blow on the body of the
deceased, with the weapons stated to have been held by them
neither any weapon of offence was recovered from A-15 or at
his instance. However, the evidence proved does not permit
any inference to be drawn regarding participation of
Marulasidappa (A-15) in the commission of the offence. We,
therefore, cannot sustain the conviction of Marulasidappa (A-
15) recorded by the High Court as it is based on the inference
drawn regarding his participation and existence of common
intention on the basis of conjectures and surmises. The
judgment of the High Court, therefore, convicting A-15 under
Section 302, IPC, and sentencing him for life imprisonment is
set aside and the appeal is accordingly allowed.
Marulasidappa (A-15) is stated to be in jail undergoing
imprisonment in this case. He shall be released forthwith by
the jail authorities, if not required in any other case. Fine, if
paid by Marulasidappa (A-15) in terms of the judgment and
order of the High Court, shall be refunded to him without any
delay.