SABANNA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This appeal is filed by accused Nos. 1 to 3 in Sessions Case No. 269/05 on the file of Fast Track Court-Ill, Gulbarga, being aggrieved by the judgment of conviction and sentence in S.C. No. 269/05 dated 31.7.2006 wherein accused Nos. 1 to 3, the Appellants herein having found guilty of having committed the offence punishable under Sections 109 and 302 r/w Section 34 I.P.C. are sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- each for the offence punishable under Section 302 and in default of payment of fine it is ordered that accused shall undergo further simple imprisonment for one year and that accused Nos. 1 to 3 are entitled to set off of the period of detention undergone by them as under trial prisoners.

(2.) The essential facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows:

(3.) It is the case of the prosecution as alleged in the complaint filed by P.W. 8 Smt. Jambakka, W/o Narsappa, the deceased that she was staying with her husband Narsappa alongwith the children and was doing household work and also work in the land and were eaking out their livelihood. Her husband had four brothers. In the partition of the property belonged to the ancestors 20 acres of Masbu land and 5 guntas of paddy land fit for cultivation were allotted to her husband and the properties were divided in the presence of the panchas about ten years next before the date of complaint (20.7.2005) and her husband Narsappa was allotted 6 acres sandi land and 5 guntas land which was being cultivated (gadde land) and remaining property was given to the share of his brothers. The land which was allotted to the share of her husband being cultivated by himself and members of his family, the complainant and they were eaking out their livelihood out of the income from the said land. About 3 to 4 months before the date of complaint (20.7.2005) her brother-in-law Sabanna S/o Ningappa (accused No. 2) and his sons accused Nos. 1 and 3 claimed their share and also the share of her husband Narsappa and are obstructing and were quarrelling with her husband and her husband had informed them that the said land has been allotted to his share in the partition and asserted his right. Even then accused had continued to quarrel with the Narsappa, husband of the complainant and on 20.7.2005 the elder son of Mahadevappa had taken sheep for grazing to the forest. Herself and her husband and her younger son Ningappa (PW. 11) were present in the house. At that time accused No. 2 alongwith his children accused Nos. 1 and 3 came to the house which is situated in the land and started quarrelling asserting their share in the land that was allotted to Narsappa and also threatened that they will take the matter to the elders in the village and took her husband and she also accompanied her husband alongwith the accused. On the way the accused abused her husband and asked him as to why he was not giving the share in the property that was allotted to him and started quarrelling with him and at 9.30 P.M. near Jambalamma temple of Taliberi road the accused Nos. 1 to 3 started quarrelling with the Narsappa, Mahadevappa accused No. 3 was armed with the axe. Sabanna was armed with the axe and has assaulted her husband on both of his legs and right shoulder and Sabanna, accused No. 1 who was armed with the spade assaulted on both the legs of Narsappa and her brother-in-law accused No. 2 was instigating his sons accused Nos. 1 and 3 that they should not leave Narsappa and he should be finished and was instigating them to assault Narsappa to finish him and at that time Narsappa had fallen down due to injury caused by assault with axe and spade by accused Nos. 3 and 1 and they stamped on the body of Narsappa. The complainant and her son Ningappa (PW. 11) were frightened and Narsappa became unconscious, all the people who were assembled there, went away and they were sitting on the road going towards Saidapur. At that time an autorickshaw came there and they stopped autorickshaw and her husband was taken to the hospital and Narsappa succumbed to the injuries and died on the way. They went to the police station and lodged the complaint as per EX.P. 13. PW. 17--PSI who was in the police station, Saidapur reduced to writing the oral complaint by PW.8 Jambakka and registered the same in Crime No. 81 /05. He prepared FIR as per EX.P. 14 and sent the same to the jurisdictional Court and also sent copy of the FIR to his superiors and since dead body of Narsappa had been brought to the complainant he conducted inquest over the dead body in the presence of Ningappa s/o Mareppa (PW. 1) and PW.2 Ningappa s/o Sabanna as per EX.P.3. He sent the dead body for post mortem examination through PW. 10, police constable to primary health centre at Saidapur wherein PW.7 conducted post mortem examination on the dead body of Narsappa as per EX.P.6. Thereafter he went to the spot alongwith panchas P Ws.3 and 4 and prepared the panchanama of the scene of offence as per EX.P.4. He recorded the statement of PW. 11 and other witnesses and deputed his staff to apprehend the accused. He received the information at about 4 P.M. that accused Nos. 1 and 2 had been apprehended. He arrested them and subjected them to interrogation. Accused No. 1 gave voluntary statement as per EX.P. 15 stating that he has concealed the weapon used by him for assault and if they come with him he will show the place where he concealed the weapon. He secured the panchas P Ws.5 and 6 and thereafter accused No. 1 lead the panchas and the police near the border of Duppalli near Jambalamma temple and took out the spade from the Jali bush which was in the halla and the same was seized as per MO.2 in the panchanama as per EX.P.5. On the same day the constable who had taken the body for post mortem examination PW.9 returned with the clothes which was found on the body of the deceased and he seized the same under the panchanama as per EX.P. 1 in the presence of the panchas. He got the sketch of the scene of offence prepared from the Engineer, PWD as per EX.P. 16. Further investigation in the case was handed over to PW. 18 on 23.7.2005 who was working as CPI Gurumitkal circle. PW. 18 verified the investigation already conducted. He recorded the further statement of the complainant. When he was in the Kadechur police station accused No. 3 was produced before him and he went there and he arrested him and interrogated him and he gave voluntary statement to show the place where he concealed the weapon used by him in assaulting Narsappa. He recorded his voluntary statement as per EX.P. 17. Thereafter in the presence of panchas P Ws. 1 and 2 accused No. 3 lead the police and panchas to his house and took out an axe and produced the same as per M.O.1 which was seized under panchanama EX.P.2. He sent the seized weapons for opinion of the medical officer to furnish his opinion and opinion is furnished as per EX.P.7 by PW.7 and after completing investigation filed chargesheet against accused Nos. 1 to 3. The case was committed to the Sessions Court since the offence is triable by the Court of Sessions. Charge was framed in S.C. No. 269/2005 and was made over to the Fast Track Court-III, Gulbarga. The Learned Presiding Officer, Fast Track Court-Ill, Gulbarga, framed charge against accused of having committed the offence punishable under Section 302 I.P.C. r/w Section 34 I.P.C. against accused Nos. 1 and 3 and for offence under Section 302, 109 r/w Section 34 IPC against accused No. 2 for having abetted commission of offence of having caused the murder of Narsappa. All the accused pleaded not guilty and claimed to be tried. The prosecution examined P Ws. 1 to 18 and got marked Exs.P. 1 to P. 17(a) and M. Os. 1 to 6. The statement of the accused under Section 313 Code of Criminal Procedure is recorded. The defence of accused is one of denial and it is their case that a false complaint has been foisted against them. Accused did not choose to lead any defence evidence. The Learned Presiding Officer, Fast Track Court-Ill, Gulbarga, after hearing the learned Counsel appearing for the parties by his judgment dated 31.7.2006 held that Narsappa suffered homicidal death and it was accused Nos. 1 and 3 at the abatement of accused No. 2 who committed murder of Narsappa and therefore the prosecution has proved beyond reasonable doubt that accused have committed offence punishable under Sections 109 and 302 r/w Section 34 I.P.C. and after hearing the accused sentenced accused Nos. 1 to 3 to undergo imprisonment for life and to pay a fine of Rs. 10,000/- each for the offence punishable under Section 302 I.P.C. in default of payment of fine directed that the accused shall undergo further Simple Imprisonment for one year and gave benefit of set off of period of sentence already undergone under Section 428 Code of Criminal Procedure Being aggrieved by the said judgment of conviction and sentence accused Nos. 1 to 3 are before this Court in this appeal.