DASAPPA AND ORS. Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) JUDGMENT and order of conviction dated 16.6.2011 passed by the Fast Track Court, Hassan in Sessions Case No. 126/2009, is called in question in this appeal by the convicted accused.

(2.) THE case of the prosecution in brief is that accused No. 1, accused No. 2 and deceased are brothers inter se. Accused No. 3 is the son of accused No. 2, whereas accused No. 4 is the son of accused No. 1. They were all divided brothers. House of the deceased was adjoining the house of accused No. 1. House of the accused No. 2 is situated opposite to the house of the deceased. At about 9.00. p.m. -9.30 p.m. on 3.4.2009, deceased had his dinner and was sitting in front of his house. He was scolding his brothers accused Nos. 1 and 2 on the ground that the accused are not looking after their mother Smt. Kariamma properly and that the deceased was not invited by accused Nos. 1 to the marriage of accused No. 4. At that point of time, all the accused came in a bus from Arsikere; they came near the house of the deceased and questioned him as to why he was scolding them unnecessarily and quarrel took place in that regard; suddenly accused Nos. 1 to 4 took out sticks and assaulted on the head of the deceased; a stone was thrown by accused No. 1 on the head of the deceased, consequent upon which, the deceased died on the spot. P.Ws. 5 and 6 being the daughter and wife of the deceased rushed to the spot from inside the house to save the life of the deceased; however, P.W. 6 was also assaulted by the accused, consequent upon which, P.W. 6 sustained three fractures.

(3.) SRI . K.A. Chandrashekara, learned Amicus Curiae taking us through the entire material on record submits that the evidence of P.Ws. 5 and 6 cannot be relied upon by the Court in view of the clear admission of P.W. 6 that she came to the spot only after the death of the deceased; according to him, P.Ws. 5 and 6 are not the eyewitnesses to the incident and that the story as made out by the prosecution is created and concocted. He further submits that even if the eyewitnesses are believed fully, it can be said that the accused have committed the offence punishable under Section 304(II) of IPC, in as much as, they did not have any intention to commit the murder of the deceased and that the incident has taken place on the spur of the moment without pre -meditation and in a fit of anger because of sudden fight.