.5:
W THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS TH I13 249% 113m" of? SEPTEMBER.
PRESENT
me: HONBLE MR. JUS'I'iCE K.sRI3Em<aAR :ELAVGJQI "
AND
THE HONBLE MR. .JV.U.9afrIc'1i:B .'v. 4'
CRLA. NO. 2004' 2
BETWEEN:A ' V' '
State 0fKarI1ataka, ' _ .
By Kallambella Police Stafidn;
- Appellant
[By Sri Sampa:1gi.ré;1f;v1_21iah',' HCVGP} in V
AND:~
1. Doddaiah, * _ " ._
S/0. }'IQ1'"a1§:e1*'i .NayakAa;,-V
.48 Years. 'I .
¢_':L_"Kabr€gOWda' " ....... ..
' 2 , S/Vo;.Rar'xgappa.
"60'37_eaJ'S...T
3. 'V Sa11_riais'ii_c'.daiah,
"-S/sj. 'Fh'ir1m1aiah,
56 ygears,
~ V " 'vfiarislaa.
V ' -- -S/0. Karegowda.
20 years,
10.
11.
% '~fM_.%T'%
Ningaiah.
S / 0. Chikkab0n1.mar1ayaka.
'35 years.
Dod.dath.imn1aiah.
S] 0. Sarmavenkeztappa.
35 years.
Nagaraja @ Ningaraja.
S/0. Mahalingappa,
21 years,
Thimmaraju,
S/0. Karethimmaiah,
25 years,
Ykanatha,
TS/0. Dodciaizah. V
25 years.:.. '_'.
H
S/0.Doddaia'h»,
2'; y€£iI"S'; '
Bh a«gyarrna,_ .' ._
S/o.DQdd_a1'ah_, ; =
24 yearS,_ V.
'- &1:vIC=;wnakuma1'r,' '" """ " 'V
0.. S.ar1j..eevanayaka,
' " 25'ye§a.r's..y
V'VHamirxi2;ritrha1'aya.
'*-- S /D. Sa'§1jeeva1n21yaka.,
2:5 yftars.
"~Bheema1*aya,
-8 /0. Sailjeevanayaka,
24 years.
15.
16.
17.
18.
19.
(By Sri Stiashidhar, Advocate
-'.42
' Basavaraj u.
S/o. Ningaiah,
22 years.
Jagannatha @ Jagadeesh,
S/0. Doddasiddaiah,
30 years,
Man} unatha.
S / o. Lakshmanayaka,
21 years,
Cha'r1dra1ma.
S/o. Doddasiddaiah,
30 years, <
Chikkathimmaiah, ' V V V
S / o. Siddarangappa; " » .
22 years,
All are" V
Sira Ta}1,1k~,--
T':vLV1I'11kt'1'I'A"'E.IIvi.VS1LI'iE."1.'. ed" 'I
Respondents
S}
;’I’hi.5 c4r”1..A,A Vis’1I’11ed wu/s.378(1) 8: {3} Cr.P-C. by the
“St.a1:C’:”P.P..fOT the praying that this Hon’b].e Court may
be p’1eaSe’«:! “to grant leave to file an appeal against the
V72joVdgment”da.ted__08.12.2003 passed by the 1 Add]. S.J..
ATu:;_1kt1;<,._V'i–;;1 S.C.,N.o.136/1994 ~» acquitting the Respondents-
ACQIISEG VI'C.t"'..f'L}V"'1jr3V offences punishable U/533.143, 1.47, 148,
-44?»,._32-4,. and 114 1’/W’. Sec.1-49 of IPC. The Appellant-
— State”§)rays “that the above order may be set aside.
V ” Tttfs appeal coming for hezmrlg on this day. PINTO, J.,
V”d:VC_ieiixrcfijed the following:
4
JUDGMEN@
s ‘K
3&3
This appeal is filed by the State cthailengizaggthe
judgment dated 8.12.2003 passed by IAddl.
Tumkur in S.C.N0.136/1994acqL1it1ing the 1’es:’5Q:r1Cie_nts
theofienua;U/3143.147.148.447jé24:3o2zuutit4¢fw’1
See. 149 OF IPC.
V2. The ease of the p1’0se’etitiQn c<5mx3ierice{1, on the
basis of the c0r11plaiItt'*-t_fiIe._i§ih :.._evr»1_e–..VJagartnatha on
30tM11994 befine the Kguapeghd P£§7saé CHnfle.Itis
alieged in the c«:;"rtip11jaji'ni, that at about 1 1 p.m.
at Kada_t7ige1*eA near the farm house of
Kataiah the a'CeuSed"afere"t.h'e'«rfiembers of unlawful assembly
with a_11_.0bjeet' can1111i'1;tifig criminal trespass and to cause
"1<seur1;':1§e' CKVV3 "TO CW9 and to commit murder of the
V"deceased"Shadfizttbiglllzlgappa. thereby they are alleged to have
cmfigfiuedgfiénesU/s143rAvsa;149ofHm1
3;' _ It is further alleged that at the said date, time
'and fylacte. the accused have used (.'.r1'.111.i.r1al force and
3%
commified 1'iot.iie1g t.hereloy they are alleged to have C0i'1'1II1iljl€Cl
offence U/s. I47 r/w Sec. 149 of IPC.
4. It is further alleged that the 21cct1sed.__ivereiii.”_
possession of deadly Weapons like choppers__: aiid ltlr1″e–
weapons when used to commit offerices'<a1fe'..&lik;elyl"to cause
death and thereby they have CO11'1I'I1ll.l;.C('j s..148 l'
Sec..l49 of IPC. It is furthelf-.d:%fllleged
trespassing into the coconut l'¢*ftA'CW2l'E{ataiah, the
accused caused death they are
alleged to have 302 r/ W Sec.
.149 of IPC.
it ‘a11§gea- that on the aforesaid place,
date time and place, ‘tjhe..alc’Cused caused injuries on PW} w
Jaganiiatha, PlW’?,.l{ataiah, PWIS « Gouramma, PW16 «
l%’\}V_ .17 — Nagaraja and PWl9 — Ramaraja thereby
a:lleged.T’to–:”have comrzutted offence U / s.324 r/w Sec.
149’of__1€Q;* it
it It is further alleged that the Accused No.4 along
-.ff\vit’lfi the deceased Accused No.2 and deceased Accused
2??
2%,: 5
6
No.2} abetted the COI1’1II}iSSiO11 of offence by Accused No.5,
Accused No.9, Accused No.10, Accused .Nos.i4 to
Accused No.18 in causing the murder of
thereby accused No.4 is alleged to have (7orrirr1iV.t_:t’edV
U/s. 1 14 r/w Sec. 302 ofIPC.
.7′. The aCQ~g,1S€d xver.-3 .5.¢ct:redV_l’Vbetore»’
thereafter charge was framed they
have pleaded not guiltymlilqe orvderllto prove
the case examiriecliri all Ex.P.1
to Ex.P28 and defence of the
accused eler1V1;al’;’ After hearing the
pr0SeC1V1’v;i0,3 andV'[hf€.AA¢1Bf¢f1.3A¢””the’learned Sessions Judge was
pleased to hold that_ the “prosecution has not proved the case
beyorfildvrelasonableudoiiht and therefore, he has passed the
jddg:_f11eritr.oi7.aequitta1. The State is in appeal.
l in his eoinplaint has stated that himself
heharid tl.-.e”p..ai9ty of Doddaiah had misuraderstanding regarding
A of way and right of water for 45) months prior to
‘ the date of the incident”. He has stat.ed that there was fight
/’g
between both the parties and also there was a case pending
before the Court. He has slated that on 30.05.1994 at”
11 p.m. all {he accused persons i.e.. Accused 2:3
and others came near the farmhouse of Sa1111a1ihgahayakal”
and trespassed into the hous_e. b.Himself:}_’*deee.ase.d_’
Shanmbulingaiah, PW2 – Kai:–1aial1,llP_VlV’16 V
PWl7 — Nagaraja, CW5 -~ Cl1iklsa’leeI;1;aaiali;.l_]ElVv’l§ –lQ§Qa”lilar1na
and PW15 — G-owranlnlanwere When
they were awakened by dogs, all of a
sudden the aforesai-:1 lzpon them and
Accused ll§f1anj’1ij;n,aih_aiV_assaulted the deceased
Shambpilingaiahorl lails leg-alrld right hand and caused
bleedingdmjuries.,aeeusled_flN.oZ13 —- 1\/ieenakumar assaulted
PW2 Kataiah meails of a club. Accused No.3 —
“vKaregow.de1 and Aeeiisetl No.1 –«~ Doddaiah assaulted himself
llP”\.7\/l”iE;l;”l’£§-lo’uyran1111a by means of club. All the other
accused assaiulied all of them by means of clubs and caused
W_VaI’iOL1S ir1_§L1ries. ‘l’he1’eafte:’, he was taken to the hospital and
C’from”‘~«t.here, eornplaim. was registered on the basis of his
l s£’al.en1e2’1l.
8
9. PW} in the Court. has reiterated the version
mentioned by him in the complaini. as aforesaid. He has
further identified the weapons used by the accused at the
time of the offetlce and has also 1″1arI’ai,ed the overtVg1e1;s’;oi’
Accused No.1. 3, 5, 13 and 18 in. his evidence.
been thoroughly eross~eXamined. However,….1h_eaVew..ri(1enCe”‘
regarding the overt acts and pa1*iii;ipa£ioh; of
five accused has been unshaken in the c1<oss~ex:;ii.n1inaLtiohof '
PW}.
10. PW2~K.L.K21i@ii’a_h 2i_fio’eh_e’f_iA”ir}jured'”e3}ewii:ness.
He also’sisied:ehoiii,~s..’i.i1e overt acts committed by the
afo1’esai(1* ;1C’cused also assault committed by
the o_i.-her ace’u_sed..onAihe”inj’L1red pm, pwz, PW15, PW16,
‘V V’ ” . . . . . .. ‘V
–GoWramma has also stated that she was
pres’e11i<éii the time of offence and has narrated the overt acts
. .hC9,I–_E$€d Accused No.1 .35. 13 and 18 at the time of offence.
. V are sejiiced.
9
12. PW’l6–D21yananda is ariolher eyewitness. PWl 7 –
Nagaraja is also another eyewitness. PWIQ –~ RE1I11aII’ajWilS~_’c3.lS_Q
another injured eyewitness. All these xvitne_ss’es-«’.V’*h§§1{=e
categorically stated regarding the assault tile”
accused persons on the date of the offence jaiid the-._v§r’e2ipoi1Vs_T f
used by them and also the deat»h o1′ Sh*ahihul1ngii–l.i1ls”zit’ restilt
of the assault. made by the a1fores’ai:do.o(tL1secil_ l
13. PW3~Rajan1l;%’~~..;9 to inquest
mahazar~Ex.P.3. PW4 –~ to spot
mahazar idAei’1lt.lfie.dV:V.flM.Os.2O and 21
being sanlple mud seized by the
police’. PW5–I)eVéiV1′-.isi:ohe–igjLttesi:or to Ex.P.4wmahazar under.
which l\/I.Os.’__2?._ to _l\/l;O;’2:4’_.’einamely Clothes of the deceased
14; PlW..6-£3ranna1 is another signatory to Ex.P.5–
ii’1éi§fi.aiza::i’;”liinder which M.O.4 is seized. He is also
sign£ito1j,zV.i.o’ihe recovery n1ahazar {*3x.P.Ei under which a club
_o’l;. i1’1s1,2mee of the accused No.3 was seized. PW?»
_’ . S1ji1’ar’:{gai2il1 is the sigi’1a1,ory to EX.P.7 under which two
Choppers marked as iVi.O 1 and M.O.2 have been seized by
the police. Ex.p.8 is the mahazzar. However this witness-..hias
turned hostile t.o the ease of the prosecution. I3W8§_G’a’iiig;x–i.1_n2é _
is the signatory to Ex.P.9 under which one filuh. 1?:-‘as”VSeizedi_
at the instance of Ninganna and Do_dc1aiah? and .other=s”v-x_vh:;e .«
are accused in this case. V
15. PW9wNarayanappa the aeepuntant
produced the RTC of ‘ viiiage,
which stands in the na1ij1_ev:’ofV who is the
father 0fPW2 V A V
has examined PW1–
J9tganneiihe1′– about 7 21.111. and issued
certificate perVEX.15;’v1$’.”‘”He further examined PW16 and
Vissueéi swouviid eert’ii”i(:ste as per Ex.P.13 in respect of
is the wound eeitificate of Ramaraju~
of the opinion that the injuries on these
‘._perso1i~s aife simple in nature.
317. PW1’1~MudIagi’riyappa Medical officer at Tumkur
u Gé-3.1ie1’a.1 hospital who has eondi1Ci,ed the Post. niortern
l i
exaininafioii on the deceased Shambulinga and has issued
RM. report. as per Ex.P.16. He has opined that the
clue to shock and haermo1*hage as 21 result, oi’_;’t’1’1e..’Vsex}e’i’e
injuries sustained by the deceased. He hé-lS.1’1117i.i’1Ci'”~§pi]’1Ii)d’ ”
that chopper like M.O.2 wouid Cause the:said”iTnj::;;ries’.–.s ;_ T
18. PW12 M H_{>.1nd;=a1«:a_.1naai?.3′ Sr. s.s*V§:1;~;c:i;1’i1s:_§’; is
District Hospital Tumkuif has eieélrnixzed when
he was first brought to injuries
and has stated that iof'”‘hi§~\.:’V”§;{amination. the
person broughf_1_f £”1%”e’t5.i;d.”‘Ii£«ei”has…1;eeeived a memo as
per Ex.P.1′:;7_V f}9o.m”Vi€a1_1€.1:n1beiie; Poliiee station in this
connectimlg P1V1″P{}=-.ARang;asVLra1ny is the junior’ engineer who
has p1’epai’e§itttheihsifieiehsiiof the scene of offence marked as
per 8. PW”1.4V%Pt1ii::11.’amaIah has been depuied to arrest
the Cr.No.83/94 of Kallambella Police station.
lHe”i”hVas””éi1t:ies{evd”Accused No.8 and 7 in this case and
p1’Od’E1C€»’.1′ be§o1’e the InVesi’,igat.ing officer.
AA PWi8 —- Venkateshamurthy is the Assistant,
‘ Ezgieemive Engineei’. KPTCL who has st.at:ed that on the night:
«/4
12
of the offence there was supply of e1eet.ricity to Kadivagere
village. in that Connection he has issued repIy~Iett.erVV.£ts_f)er
EX.P.20. PW20 M Beliibheernanaika, PW21 ~«~ Chan_cfi’é1iEih–~ _
PW24 — R3.lT1E1fiI1€t have turned hostile to .the'”
prosecution.
20. PW23–Rangaiah r2eti:’VedV has
registered compiaint of “pe:rAAE§A2<;.P.l for
offences punishable 326 and
307 r/W See. 149 {PC the court in
Cr.No,83/ .._tV1ie."'ir1:forri:1.atiori from the
hospita} to the injuries he
has the above said crime number
and rnadeié' repovrtxto as per Ex.P.24.
]V3Wfi5""<.VEa}.akshaiah is the Investigating Officer
vaho–»hasVVta1;e:i"o\(e'r the investigation from ASI — Rangaiah on
Conducted the investigation, recorded the
. staternerst of eyewitnesses and other witnesses and
.tcor1r:h,1ctet:1 inquest mahazar._ 'rec:ei.ved wound certificate and
PM report and after completion of the investigation filed the
chargesheet.
22. It is from the evidence of these witnesses’ _
the learned Sessions Judge has 0bse1’ve:1– dd
prosecution has not proved the case:…beyOn_d ._feas0V3}ab}ec.’
doubt. Therefore, he has passed th’e_!c’:’der
Hence. the State has come up appeal,-.
23. Heard learned
Government Pleader and advocate
for Respondents.'”‘:fl” A L V
24. that in this case
there ate.’_5:.:’_iVI1jt1I:edV”eyewitnesses who have
spoken and the version of these
witnesses ca4te§ge1’icai}yA”states that the Accused Nos}, 3, 5.
:_.,.18V._A}.1ave”Vactively participated in the crime. He
“tsuhf1fits”‘that:”the witnesses categorically state regarding
the Vcifert. Adcaused by Accused .N0s..1., 3, 5. .13 and 18,
dgtnore pafticL11arly the overt acts of Accused N0s.5 and 1.8 in
j_’c;e1uVsi:1g the injuries on the person of the deceased
‘ Shambulingappa by means of chopper. He further submits
I4
that the defence has not come out with plausible theory
regarding the incident. He further submits from the evviderice
of these witnesses enmity has been established. _He’4fti~;ttl1eij
submits that the evidence of PWl8 discloses was”
supply of electricit.y at the time of in T
of the admitted fact that thepaceused-Ahaizd thelviliiaplttred
belonging to the same village, the
identity does not arise atf:aiIp__ that allvthevvaccused
deserve to be convicted of IPC and
prays that the sentenced in
accordance ‘V L l
tttt leaifiriedl counsel for the accused
submits ltiriat–the’order_of»la§qhittal Passed by the trial Court
is proper he subriiitslfii an appeal, the appellate court
l*cane.ot” impose its lowri views on the fact finding process
ex’ercisued’-,_by'”..tVlie trial Court and only in exceptional
circtu§1st.ances such exercise could be done. In this case no
xsuch e~xce_ptional circumstartces are pointed out by the
‘~.iprose’out.io11 to convict the accused. Hence prays that the
l appeal be dismissed.
E’
/’
vi
[5
26. We have gone through the evidence of the
injured witnesses and also the niaterials placed beforethae
Court. We have kept in mind the principles of
appellate Court wili be slow in case of acquittal. ”
finding; of the trial Court except if!the_:Alfiiidi’ng’:4Aof…:tiiei..V_tirilaljCi’
Court is capricious and or if it.Vis_”not: on zorlhas
resulted in miscarriage of it are
possible in a particular trial
Court’ is plausible even in court
would not i1″1iCI§’~lEi’Ar:ev’l}\’iE.h:;’tl1f§’ the trial Court.
Even in anapp”¢a]””f§__ ag’1-o9f._Vpfcappreciatioii “of the evidence
before the app’eliate’lCloL1_rt’,«V.:tlie appellate court finds that the
order of”.ac’quitta1.” even in such cases the
appellate court uvvoultd notiipset the order of acquittal passed
‘vby trial iCAourt.l Bearing these settled principles in mind
deal with the matter on hand. It is seen that
the Ex.P1 given by PW} mentions the name of
lxuall the» accused and also the specific overt acts of 5
‘~lC_perso~iis Accused Nos.l, 3, 5, 13 and 18. The presence
‘ and participation of these 5 accused has been established
beyond reasonable doubt from the evidence of PW}.
PWI5, PWE6 and PW19 who are the injured eyeWit_;ness_es_.
The evidence of the injured witnesses in any case _
slightly brushed aside on some surmises .o”r”=eonjectL1–res__
unless there is strong (‘.iI’Ct1I}’1Sifi.11C€y~15$’ disbe1’ieVeV”‘-si.th’e;sA
evidence of the injured eyewi.tiae_sses&.V”Altdisneeessdrér
their version should be given to After
carefully going through Wei] asuthe version
of the injured eye\2tfitriesses,_v:V’v’AeV t-h~e.’iirIi1′–o’pinioI1 that it
is the Accused;_”IV. Ea, have carried
Eetha] murder of
Shanibiziutlingaisfia injuries on PW1. PW2,
PW15, per the wound certificates
produced bet’orevVth.e..’–t1’ié:.l’Court. Therefore, we find that the
:offence of hcétusiiig death of the deceased by the
has been proved by the prosecution. It is
further seen the said act 01″ accused has been committed
<_\;vit.h .21 '~eon1n1o11 object of committing Iliurder of deceased
":Sh.;irr1'bh.Lllingappa. which is demonstrated by the fact that
t they have come at 1i.OO p.m. carrying weapons in the night
ti.r1'1e and they have pounced upon the unarmed deceased
and others. Under the circninstances the p1"osect1ticn"<«.l_ia–s
proved the common object of all the accused peierons .
Cornnlission of the offence. HeI1ee,_we 11olc:i".ACet1sed.
Nos}. 3, 5, 13 and 18 are guilty oflhe ;;;i':'e;qc'<:.if/1s§;-3o'::[f-aw:;_7
Sec.149 of IPC and also ol"l'e11eel U.S.3Q:4t"J. A1':49_HOlfl
in View of there being no speeifie"«.oVe.;ft aets by the
witnesses, we are inelii1ed:~to doubt to other
accused persons. V
27. in the sense that
the accused. the house of sleeping
Vietlmsgyanld feel that in View of the
enmity we impose sentence of
in1priso_nmerit for-lil’e instelad of death sentence to accused
3.9.5, {B lor the offence U/s.302 r/W. SeC..l49
of l”1lt’1j_ey are sentenced to suffer R1. for a period
ohinlelyearl the offence U/S324 1’/W. Sec. 149 of IPC.
28.’; In so far as the other accused are eo’nCern.ed, the
paft;ie.ipat.ioI1 has not been clearly established. ‘I’herel”o1*e. we
” wetild not 1’nte1’fere with the order of aCq1,1il,i’:.al against. other
iii
accused in this case. T hercfore, the order of their acquiital is
hereby confirmed.
29. In the result, the appeal filed by
partly allowed. Accused No.1. — i)oddaiah_,.~wS,/l_o:’..u
Nayaka. Accused No.3 — Karegowdas
Accused No.5 – Harisha, S/oV.e’P§arego’-Jcllez, Ac(:.ulse(;lV
Mee11aI«:umar, S/0. Sa’neexrana§ai%a andll z’x.c’cuse<1l2§No. 18 M
Manjunatha, S/o. .con.\ricteclll'AI"oi; gffences
U/s.3o2 r/w. Sec. 149 to undergo
imprisonment,;iol;««lljl'e. 'l':'lj1eysi*le 'l71l:I:'ll~':1:'t21'V'.Qfi)i'I1"l\/'ZlCt€tCl for offence
U / s.324 r/Vic to undergo R1. for
one run Concurrently. The
Appeal other accused is dismissed.
_The t1:lie.l_lCou.’:’t ‘is o’1}ec1.ed to execute the sentence as
‘ ‘ ..here1’f1 1:;e,I’o1″~e mentlilo1″;’e’cl.
Séif 1:
Tuégs
sfifz