SANGANABASAPPA BHEEMAPPA KALIGONNAVAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Six appellants (original accused Nos. 1 to 6) have filed this appeal under S. 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act read with S. 379, Cr.P.C. They were tried by the Sessions Judge, Dharwad for offences punishable u/Ss. 147, 148 and 302/ 149, I.P.C. and they were acquitted. The State preferred an appeal and the High Court set aside the order of acquittal and convicted all of them under Ss. 148 and 302/149, I.P.C. and sentenced each of them to undergo R.I. for two years and imprisonment for life respectively.

(2.) The prosecution case is as follows: The accused, the deceased Hanamantappa and the material witnesses belong to Village Mallapur District Dharwad. The deceased Hanamantappa and his younger brothers P.W. 1 Giriyappa and P.W. 17 Yallappa got divided and P.W. 18 Basavantappa, the eldest son of the deceased was living with him. The deceased was doing both business and agriculture. P.W. 18 used to attend to agriculture. A l took a loan of Rs.5,000/- in advance from the deceased assuring that he will bring his cotton to the ginning factory of the deceased. But as assured, A 1 did not take his cotton to the ginning factory nor did he pay back the amount. The deceased about 7 or 8 days prior to the incident, detained A 1 in the ginning factory from morning till evening. But P.W. 11 Parappa and C.W. 12 Shivarudrappa got A 1 freed from the detention in the evening on A 1 assuring that he will make arrangements for the payment of Rs. 5,000/-. Consequently A l had a grudge against his brother P.W.1 deceased and was waiting for an opportunity to wreak vengeance on the deceased. The deceased as usual was in the ginning factory on 11-6-78. His brother P.W. 1 also sent to the factory at about 7 or 7.30 p.m. to discuss about the arrangements of the marriage of his grand-daughter Basavannewwa with Shivanappa which was fixed on the next day i.e. 12-6-78. Since the elders arrived at the house of P.W. 1 in connection with the holding of the ceremony prior to the marriage, P.W. 17 left the house of the brother P.W. 1 at about 7.30 p.m. in order to fetch the deceased and also the other brother P.W. 1 in that connection. On his arrival, both the deceased and P.W. 1 got up and P.W. 17 was asked to remain in the factory which was working. The deceased locked the office and proceeded towards the Village in order to reach the house of P.W. 1. P.W. 1 felt like easing himself when both of them were near the society building and accordingly P.W. 1 sat down to pass urine and the deceased proceeded ahead. When P.W. 1 was about to get up, he heard the cry not to beat and that he would die from the side of the house of Kariyannavar. Recognising the voice of the deceased, P.W. 1 immediately rushed in that direction and found the accused having waylaid the deceased and taking him near the electric pole where the bulb was burning. A-4 and A-6 caught hold of the hands of the deceased. A-l stood in front of the deceased instigated all to finish the deceased. A3 and A5 who were armed with Jambyas and A2 who was armed with a Kudugol, inflicted injuries on the deceased. P.W.1 who witnessed the attack rushed in that direction. P. W. 2 Basavantappa who had been called to the ginning factory by the deceased on that very day in the evening was on the way to the factory and he witnessed the attack. Another witness P. W. 3 Durgappa was the watchman in the factor. He was also on the way to the factory to resume his duty when he witnessed the occurrence. Though P.Ws. 1 to 3 intervened, Al to A6 did not heed to their advice but threatened them and after the deceased fell down, A1 to A 6 ran away towards the house of A 1. P.W. 4 Basavantappa Shirol and P. W. 5 Shivabasappa Danreddy who happened to be proceeding towards the Village Mallapur from the railway station also witnessed the occurrence. After the deceased fell down, P. Ws. 1 to 5 went near him and the deceased told in low voice that A 1 committed fraud and got him murdered. After so saying he breathed his last and died. Hearing the cries of P.W. 1 people in the locality also gathered. P.W. 17 who was asked to be in the factory also came to know about the occurrence. P.W. 18, the son of the deceased also came to know about the same. Both P.Ws. 17 and 18 and other family members collected at the spot and later went back home. P.W. 1 made attempt to inform the Ron police by sending Shivanappa Arahunshi to the house of Shivappa Danreddy who had a phone but it was found to be out of order. P.W. 1 wanted to go by himself to Ron but he was persuaded not to go out of the house during the night since there was a danger to his life. On the next day i.e. 12-6-78 at about 7.30 a.m. P.W. 1 got into a tractor and reached the Police Station at Ron which was seven miles away. P.W. 12, a Head Constable was present in the Police Station. P.W. 1 orally complained about the occurrence and P.W. 12 got it recorded as Ex. P1 and he registered the offence and issued an F.I.R. Ex. P13 and sent a copy to the C.J.M. Dharwad since the J.M.F.C., Ron was on leave. He also sent express reports to his superiors. P.W. 12 proceeded to Village Mallapur and reached there at about 8.45 a.m. and found the dead body of the deceased lying on the road. He secured P.W. 18 and one Ramappa for holding the inquest. By then P.W. 22 the Circle Inspector having learnt about the murder reached Village Mallapur and took over the investigation from P. W. 12. He held that inquest in the presence of' P.W. 18 and Ramappa and seized certain articles. He sent the dead body for postmortem. He also recorded the statements of' the material witnesses. He searched for the accused and found them to be absconding. He also examined the residents in the locality but they stated that they have not witnessed the incident as such.

(3.) P.W. 6, Dr. Gargi who conducted the post-mortem found as many as 10 injuries on the body of the deceased. Injury No. 1 was an incised-wound on the left sub-scapular region penetrating in nature passing into the internal tissues. Injury No. 2 was an incised injury on the back of the chest. Injury No. 3 was on the posterior aspect of right shoulder penetrating up to the underlying scapular bone. Two incised injuries were on the right region and another incised injury was on the right side of the chest and the ribs and intestinal coils were seen through the injury. The sixth injury was on the epigastric region. Another incised injury was on the epigastricum situated 1-1/2" above the umbilicus and the ometum was exposed through this injury. Another incised injury was on the right wrist and one more incised injury was on the upper part of left fore-arm and also an incised injury on the left wrist. On internal examination, he found ventricles of the heart injured, haematoma. thoracic vertebra damaged, muscles in the scapular region damaged, injury to the right lobe of the liver, and injuries to the abdomen etc. He opined that the injuries must have been caused by sharp-edged weapons and injuries Nos. 1, 4, 5 and 7 were individually sufficient to cause death in the ordinary course of nature and the deceased could have survived for few minutes after receipt of the injuries and that generally it is not possible for the victim to talk.