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PETITIONER: THE STATE OF KARNATAKA

       Vs.

RESPONDENT: SHIVAPPA GURUSIDDAPPA & ORS. ETC.

DATE OF JUDGMENT:       10/12/1997

BENCH: G.T. NANAVATI, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                THE 10TH DAY OF DECEMBER, 1997 Present:              Hon’ble Mr. Justice G.T. Nanavati              Hon’ble Mr. Justice G.B. Pattanaik K.H. Nobin Singh, M. Veerappa, Advs. for the appellant Ms. Kiran Singh, Adv. for the Respondents                       J U D G M E N T      The following Judgment of the Court was delivered:                       J U D G M E N T NANAVATI, J      These two  appeals arise  out of the common judgment of the High  Court of Karnataka in Criminal Appeal Nos. 334/86, 341/86 and  425/86. Criminal  Appeal No.  634/89 is filed by the State  of Karnataka  against 13  respondents  originally accused Nos.  1 and  5 to  16 and  who had  filed a separate appeal in  the High  Court. Criminal  Appeal No.  635/89  is filed against  3 respondents,  original accused  Nos. 2 to 4 and who  had also  filed a  separate appeal  before the High Court.      The prosecution case was that P.W. 4 had a share in the land bearing  No. 180/1  and that  accused Nos.  1 to 4 were obstructing him in cultivation of the said land. P.W. 4 were obstructing him in cultivation of the said land. P.W. 4 had, therefore, on  the day prior to the day of incident filed an application before  the police  complaining against  accused Nos. 1  to 4.  On 4.10.1984 between 12.30 p.m. and 1.45 p.m. all the  16 accused  armed with  deadly weapons  went to the said field  to take  possession of  the land.  In the  field Rudragowda, Siddagowda,  Balasaheb Eragowda  P.W. 3  Irappa, P.W. 4  Kadappa, P.W. 5 Mahadev, P.W. 7 Sadashiva and P.W. 9 Nin were  present.  All  the  accused  started  being  those persons as  a result  of which 4 persons namely, Rudragowda, Siddagowda, Balasahed  & Eragowda  lost their  lives and PWs 2,3,4 and 5 received injuries. All the 16 accused were tried for various offences including the offence punishable  under Section 302  IPC. The  trial court relying upon the evidence of the  PWA 2,3,4,5,7,8  and 9 held that all the accused had unlawfully confined  PWs 3  and 4  and tied them with a rope and that  they killed  those  4  deceased  and  injured  the prosecution witness  and therefore  they were all guilty for

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the offences  punishable under  sections 148,  302 read with 149 IPC, 342 read with 149 IPC and 323 read with 149 IPC.      All  the   16  convicted   accused   challenged   their conviction  before   the  High  Court.  The  High  Court  on reappreciation of the prosecution evidence found that really accused Nos.  1 to 4 were in possession of the disputed land and the  deceased and  their companions  wanted to take back forcibly possession  of the said land and therefore whatever acts the  accused had  committed were  in exercise  of their right of private defence. However, considering the number of injuries found  on the dead persons and places from were the dead bodies  were found,  the High Court held that they were also chased  by the  accused and  given more  blows and thus they had  exceeded the  right of  private defence.  The High Court had  also found  that only  accused no.  1  o  4  were present in  the field  and it  was doubtful  if any  of  the accused nos.  5 to  18 was  present there.  Th  High  Court, therefore, giving benefit of doubt acquitted accused 5 to 16 and convicted accused nos. 1 to 4 for the offence punishable under section 304 part I I.P.C.      In these appeals, State is challenging the acquittal of accused nos.  5 to  16. what is urged by the learned counsel for the  appellant is  that inspite  of the compromise, PW-4 had remained  in possession  of the field and the High Court ought to  have accepted the evidence of the eye witnesses in view of  the fact  that only  on the previous day  PW -4 had given an  application to  the police  complaining about  the attempt  made   by  the   accused  to  deprive  him  of  his possession. It  is a  difficult to accept this contention as join view of the compromise the defence version that accused Nos. 1  to 4  were in  possession of  the land  appears more probable Under the compromise they were to retain possession on payment  on payment  of certain  amounts. It  is also  an admitted position  that amounts which were payable to P.W. 4 and his  brothers were in fact paid to them. It is therefore unlikely that  P.W. 4  continued to  remain in possession of land even  after that  compromise and  payment of  the  said amount. The  version of  the defence  that P.W.  4  and  his brothers had  relinquished   their share in the land appears to be more probable. The High Court was, therefore, right in holding that  the accused  Nos. 1 to 4 were in possession of the land  and not  P.W. 4.  It was  also  contended  by  the learned counsel  for the  appellant that  High Court  was in error in  holding that the prosecution had not explained the injury on the person of accused No.4. As rightly pointed out by the  High Court  it was  a belated explanation and was in fact an  improvement. None  of the prosecution witnesses had stated before  the police  that during that incident A.4 was as a result of a blow which A.8 wanted to give to one of the accused but  accidently fell on A.4. This explanation cannot be believed  because A.4  had, in  fact, received 3 injuries during that  incident as roved by the evidence of the doctor P.W. 6.  It therefore  clearly appears  that P.W. 4  and his brothers and the persons accompanying them had tried to take possession of  the land  by using force. That is how accused No.4 had come to be injured in that incident.      As accused 1 to 4 were in possession of land and as A 4 was attacked, they had the right of private defence of their property and  person. It  is no doubt true as pointed by the High Court,  number of  injuries found  on the  dead persons were  many  and  were  not  justified  in  causing  so  many injuries. In   doing  so they  had  exceeded  the  right  of private defence.  They have  been  rightly  convicted  under Section 304  part I IPC . As we do not find any substance in these appeals they are dismissed. The appellants are ordered

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to surrender to custody.