STATE OF KARNATAKA Vs. BHEEMAPPA

JUDGEMENT

(1.) Chief Judicial Magistrate, Raichur committed Bhimappa (A11, Karibasappa (A2, Gobbi Hanumantha (A3, Talwar Lingappa (A4, Basangouda (A5, Jamappa (A6, Gulappa (A7, Lachmappa (A8, Mallikarjun (A9, Shekharappa (A10, Gowdappa (A11, Amaregouda (A12) by an order dated 13-6-1980 to stand their trial for of fences punishable under Ss. 147, 148, 302/149, 307/149, 324/149, I.P.C. By a separate order dated 21-6-1981, Shankargouda (A13, Erangouda (A14) son of Thimmangouda, Erangouda (A15) son of Lingangouda, Mallappa (A16, Buligappa (A17, Gulappa (A18) were also committed to the Court of Session to stand their trial for the same offences. On 2-8-1980 charges were framed against A1 to A12 for the offences punishable under Ss. 147, 148, 302/149, I.P.C. and in the alternative for an offence under S. 302/34, I.P.C. for having committed the murder of Gowdappa s/o Bhimangouda and Shankargouda s/o Gowdappa and for offences under S. 324/149, I. P.C. and in the alternative for an offence under S. 324/34, I.P.C. for causing injuries to Basangouda P.W. 3 and Rajashekhar P.W. 11. Charges were framed on 26-2-1981 against A13 to A18 for offences punishable under Ss. 147, 148, 302/149, I.P.C. for having committed the murder of Gowdapa s/o Bhimangouda and also under S.302/149, I.P.C. and in the alternative for an offence under S. 302/34, I.P.C. for having committed the murder of Shankargouda s/o Gowdappa and for an offence punishable under S. 324/149, I.P.C. and in the alternative for an offence under S. 324/34, I.P.C. on two counts. The circumstances under which two separate commitment orders were made and separate charges were framed in respect of the same occurrence against two sets of accused would be dealt with in the latter part of this judgment. The learned Sessions Judge convicted A1 to A11 for offences under Ss. 147, 148, 324/149, I.P.C. and 302/34, I.P.C. and sentenced them to undergo rigorous imprisonment for varying terms but directed the sentences to run concurrently. A1 to A11 were, however, acquitted of the offences under Ss. 307/ 149, I.P.C. So far as A12 to A18 are concerned they were acquitted of all the charges. Two appeals were preferred in the High Court of Karnataka. Criminal Appeal No. 220/82 was filed by A1 to A11 against their conviction and sentence while Criminal Appeal No. 481/82 was filed by the State against (i) the acquittal of A1 to A11 for the offence under S. 307/149, I.P.C. and (ii) against the acquittal of A12 to A18 of all the charges. Vide a common judgment, dated 17-1-1983, the High Court accepted the appeal filed by A1 to A11 and set aside their conviction and sentence for various offences. The High Court also dismissed Criminal Appeal No. 481/82 filed against the acquittal of A1 to A11 for the offence under S. 307/149 and of A12 to A18. The State of Karnataka has, on special leave being granted, filed two appeals in this Court.

(2.) According to the prosecution case the deceased Gowdappa, his son Shankargouda and another son Shivangouda (P.W. 6, Basangouda (P.W.3, Rajashekhar (P.W. 11) and Paravatareddy (P.W. 9) were living together in a house belonging to an advocate, Shri M. Nagappa. All these persons were required to give attendance at Sadar Bazar Police Station, Raichur twice a day, in the morning at about 8 a.m. and in the evening at about 7 p.m. in compliance with the directions of the Court. They had also been directed to stay at Raichur proper. These directions had been given to them in a complainant case during the trial of a criminal case filed by A18. The wife of Shivanagouda (PW 6) and the wife of deceased Shankargouda were also staying at Raichur to take care of the household duties. Proceedings under S. 107, Cr.P.C. against deceased Gowdappa and his party members on the one side and Shankargouda (A13) and the members of his party on the other side were also pending in the Court of Taluka Executive Magistrate at Devadurga. There were other criminal and civil proceedings pending in various courts between the parties. The relationship between the parties were totally strained and there was pro nounced hostility between the two factions on account of various criminal and civil proceedings pending between them.

(3.) On the date of the occurrence i.e. 13-4-1979 at about 7.10p.m. the deceased Gowdappa along with his son Shankargouda and the other son Shivanagouda (P.W. 6) had gone to Sadar Bazar Police Station, Raichur to mark their attendance. Basangouda (P.W. 3, Mallikarjuna (P.W. 10, Paravatareddy (P.W. 9) and Rajashekhar (P.W. 11) had accompanied them to the Police Station. After marking their attendance at the Sadar Bazar Police Station, the aforesaid persons proceed ed towards their rented house at Raichur. Shankargouda was ahead of the remaining party and he was holding the hand of the son of his son, Rajashekhar P.W. 11. Near Petlaburj road, the accused persons emerged from the side of a ditch variously armed with daggers etc. and attacked the deceased Shankargouda, Gowdappa and Basangouda with their respective weapons. Gowdappa and his son Shankargouda died as a result of the injuries inflicted on them. Basangouda P.W. 13 also received some injuries and so did Rajashekhar P.W. 11. Shivanagouda P.W. 6, Mallikarjun P.W. 10 and Parvatareddy P.W. 9 ran away for their safety from the spot. Rajashekhar P.W. 11 after receiving the injury on his finger ran to his house to inform his mother and aunt about the occurrence. All the accused, A1 to A18, thereafter escaped with the weapons in their hands. Rajashekhar P.W. 11 returned to the spot along with his mother Chinamma and an aunt. Police Sub-Inspector of Sadar Bazar Police Station was standing outside the Police Station, regulating the traffic, when he learnt from some Rickshawalas and tangawalas that murders had taken place near Petlaburj. He rushed to the spot along with two police constables. On reaching Petlaburj he found the dead bodies of Gowdappa and Shankargouda lying in a pool of blood. Basangouda P.W. 3 was also lying down as a result of the injury received by him. A crowd of people had gathered at the place of occurrence. P.W. 20 sent a constable to bring jeep from the Police Station and removed P.W. 3, Basangouda to the District Hospital reaching there at about 7.40 p.m. The injury of Basangouda P.W. 3 was attended to by Dr. Shamsunder Rao P.W. 5 who admitted Basanagouda P.W. 3 as an indoor patient. Dr. Rao P.W. 5 told the Sub-Inspector, Mallanagouda P.W. 20 that the condition of Basanagouda P.W. 3 was very serious, Sub-Inspector, Mallanagouda P.W. 20 thereupon recorded the statement, Ex.P3, as narrated by the injured Basanagouda P.W. 3 to him. He obtained the signatures of Basangouda P.W. 3 on the statement Ex. P3 (to be used as a dying declaration if need arises) and went back to the Sadar Bazar Police Station for registration of the case. FIR Ex. P21 was accordingly registered for offences under Ss. 147, 148, 323, 302/149, I.P.C. FIR Ex.P21, along with the statement of Basanagouda, Ex.P3, was sent to the Deputy Superintendent of Police and the Chief Judicial Magistrate. Sub-Inspector, Mallanagouda P.W. 20 thereafter handed over the case papers to the incharge Crime Police Inspector, Ghouse Mohiuddin P.W. 21 for further investi gation. Executive Magistrate, Mo hammed Alauddin P.W. 8 was contact ed and requested to come to the hospital to record the "dying declaration" of Basangouda P.W. 3 as it was suspected that he might die as a result of the injury received by him according to the opi nion of Dr. Shamsunder Rao, P.W. 5. The Executive Magistrate P.W. 8 ac cordingly reached the District Hospital at about 10 p.m. and recorded the statement of Basanagouda P.W. 3 treating it to be a dying declaration in the presence of Dr. Rao P.W. 5. After completing the investigation and seiz ing various articles from the place of occurrence, all the accused, A1 to A18 were sent up for trial as noticed in the earlier part of this judgment. Since, Basanagouda P.W. 3 survived the attack of murder, the Chief Judicial Magistrate on the request of the prosecuting agency, framed a charge against the accused persons for an offence under S. 307/149, I.P.C. also.