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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

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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

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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

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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

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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

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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.