BETTEGOWDA AND OTHERS Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal by the convicted accused Nos. 1 to 3 in S.C. No. 301/2000 before the Fast Track Court -I, Mysore is directed against the judgment of conviction and order of sentence dated 29.10.2005 passed in the said case convicting them for the offences punishable under Sections 326 and 341 read with 34 IPC and sentencing them to undergo rigorous imprisonment for 6 years and to pay fine of Rs. 1,000/ - for the offence punishable under Section 326 and rigorous imprisonment for 10 days for the offence under Section 341 of IPC.

(2.) APPELLANT No. 1/accused No. 1 is the father while appellant Nos. 2 and 3/ accused Nos. 2 and 3 are his sons. They are residents of Kumbara Koppal in Mysore. They were charged for the offences punishable under Sections 341, 307 read with 34 IPC. The case of the prosecution in brief was accused No. 1 -Bettegowda, P.W. 1 -Vyramudigowda and one Cheluvegowda -CW.6 are brothers. Long prior to 18.9.1999, the brothers had divided their joint family properties and were living separately. However, one of the properties was kept as joint and later a revenue lay out was formed in the said land and the sites so formed were sold jointly by the 3 brothers and the proceeds were being shared by them. However about 3 months prior to 18.9.1999, while accused No. 1 was not in town, P.W. 1 finalised the sale of one of the sites in the said layout to one Smt. Shivamma, mother of P.W. 5 -Nataraj. After finalising the sale transaction, P.W. 1 by receiving part of the sale consideration, had delivered possession of the site to the said Shivamma. Thereafter said Shivamma started putting up construction on the said site. On return to the town, accused No. 1 and his two sons started objecting for putting up construction on the said site by said Shivamma on the ground that he had not received his share of the sale consideration in respect of the said site. On 17.9.1999, the accused had pulled down the wall constructed by said Shivamma on the said site. The purchaser Shivamma informed the same to P.W. 1 and requested him to intervene and settle the dispute. P.W. 1 promised Shivamma that he would speak to his brother and get the matter settled and asked her to proceed with construction. In the morning of 18.9.1999, P.W. 1 went near the site and on the way he saw accused No. 1 near his house situated in the revenue lay out and called him for a discussion. However, accused No. 1 did not come near the site. Nevertheless, P.W. 1 went near the site and asked said Shivamma to proceed with the construction and returned to his house. After some time, accused Nos. 1 to 3 went near the site, obstructed the construction and pulled down the wall being put up therein. Immediately, said Shivamma came to the house of P.W. 1 and informed him about the acts committed by accused Nos. 1 to 3. At about 8.30 a.m., P.W. 1 once again went near the site and at that time he tried to persuade accused No. 1 by asking him not to obstruct the construction and that he would see that his share of the consideration would be paid to him. However, when accused No. 1 tried to go towards his house, P.W. 1 by holding the shoulder of accused No. 1 started requesting him to sit down for a discussion. On seeing this, accused No. 3 -Jaikumar @ Suresh took out a knife from his pant pocket and stabbed on the stomach of P.W. 1 as a result of which P.W. 1 sustained injury on the stomach and the coils of the intestine started protruding through the wound. Therefore, P.W. 1 tried to hold his stomach by pushing the intestine coils inside by his hands and at that time accused No. 3 once again assaulted P.W. 1 with the same knife on the chest portion. At that juncture, accused No. 1 hugged P.W. 1 from behind. On seeing this, P.W. 7 who had come near the site following his father tried to rescue his father. At that juncture, accused No. 2 took out a chopper hidden below the mat of the scooter on which he had come there and tried to assault P.W. 1 on the neck. However, P.W. 1 raised his hands to ward off the blow as a result the blow fell on the left hand and similarly when accused No. 3 once again tried to assault him, he warded off the said blow by his right hand resulting in injuries to his both hands. When P.W. 7 went to the rescue of his father accused No. 3 stabbed P.W. 7 with the same knife on the stomach and accused No. 2 assaulted him with chopper causing him severe injuries. This incident was witnessed by P.W. 5 -Nararaj, P.W. 9 -Maya and others who were there. As a result of assault, both P.Ws. 1 and 7 fell on the ground and on seeing this, accused Nos. 1 to 3 left the place thinking that both of them have died. Immediately, P.W. 1 was taken in the autorickshaw owned by P.W. 5 to B.M. Hospital, Mysore while in another autorickshaw P.W. 7 was initially taken to the nearby Aditya Hospital and from there he was taken to B.M. Hospital. Both P.Ws. 1 and 7 were admitted to B.M. Hospital and were treated as inpatients. On admission of the two injured persons who had been brought there with history of assault, the Hospital authorities informed the police over phone and immediately P.W. 11 -K.S. Krishna Murthy, Police Sub -Inspector, Jayalakshmipura Police Station, Mysore came to the B.M. Hospital and since P.W. 1 was in a position to speak, he recorded the statement as per Ex.P.1 and on return to the Police Station on the basis of Ex.P.1 he registered the case in Crime No. 113/99 and submitted FIR to the jurisdictional Magistrate as per Ex.P.9 and took up investigation. During investigation, P.W. 11 visited the scene of occurrence, drew up a spot mahazar as per Ex.P.2 and collected blood stained and sample mud from the scene of occurrence. Later, on the same day, he seized the blood stained clothes of the injured P.Ws. 1 and 7 under a mahazar Ex.P.3 as per M.Os.3 to 5 and 8. Thereafter he recorded the statement of the witnesses, deputed the staff to apprehend accused persons, recorded the statement of the other injured P.W. 7 who was taking treatment in the Hospital. During the investigation, the accused persons appeared before the Investigating Officer alongwith copy of the order of anticipatory bail and at that time the accused persons were arrested and released.

(3.) ON committal of the case, the accused Nos. 1 to 3 appeared before the learned Sessions Judge and pleaded not guilty for the charges levelled against them and claimed to be tried. The prosecution in order to bring home the guilt of the accused persons examined P.Ws. 1 to 11 and relied on documentary evidence Ex.P -1 to Ex.P -10, as well as material objects M.O.1 to M.O.9. During the cross -examination of witnesses, the defence got marked Exs.D -1 to D -7, which are the portions of the statements of the witnesses recorded under Section 161 of the Code of Criminal Procedure. During their examination under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. They did not choose to lead any defence evidence. The defence of the accused was one of the total denial and that of false implication.