Appeals against conviction for murder and other offences. The High Court held that common intention was shared by all three accused, modified accused No.3's acquittal under Section 302 IPC to conviction thereunder, and dismissed the other appeals.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 924/2019 (C)
C/w
CRIMINAL APPEAL NO. 1218/2019 (C)
CRIMINAL APPEAL NO. 1517/2019 (A)
CRL.A.No.924/2019:
BETWEEN:
Digitally signed by A K CHANDRIKA Location: High Court of Karnataka
GANESHA S/O HANUMANTHAPPA AGED ABOUT 23 YEARS STUDENT/ STUDYING LL.B R/AT DOGGALLI VILLAGE HARIHARA TALUK DAVANAGERE DISTRICT-577 601
…APPELLANT
(BY SRI P.B.UMESH FOR SRI R.B.DESHPANDE, ADVOCATES)
CRL.A.No.1218/2019:
BETWEEN:
S/O LATE SIDDALINGAPPA AGED ABOUT 43 YEARS OCC: AGRICULTURIST R/AT DOGGALLI VILLAGE HARIHARA TALUK
DAVANAGERE DISTRICT-577 601
S/O LATE CHANNAPPA
CRL.A No. 924/2019 C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019
AGED ABOUT 28 YEARS OCC: AGRICULTURIST R/AT DOGGALLI VILLAGE HARIHARA TALUK DAVANAGERE DISTRICT-577 601
…APPELLANTS
(BY SRI C.H.JADHAV, SENIOR COUNSEL FOR SRI CHETAN JADHAV, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY HARIHARA RURAL POLICE STATION HARIHARA CIRCLE DAVANAGERE DISTRICT – 577 601 REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU-560 001
… RESPONDENT (COMMON)
(BY SRI SHANKAR H S, HCGP)
CRIMINAL APPEAL NO.924/2019 AND CRIMINAL APPEAL NO.1218/2019 ARE FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 09/10.05.2019 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE IN S.C.NO.85/2017 - CONVICTING ACCUSED NO.3 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 324, 323, 504, 506 R/W 149 OF IPC AND IN S.C.NO.43/2017 CONVICTING ACCUSED NOS.1 AND 2 FOR THE OFFENCE OFFENCES PUNISHABLE UNDER SECTIONS 302, 324, 323, 504, 506 R/W 149 OF IPC RESPECTIVELY.
CRL.A.No.1517/2019:
BETWEEN:
STATE OF KARNATAKA BY RURAL POLICE, HARIHARA DAVANAGERE DISTRICT REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU-560 001 …APPELLANT
(BY SRI SHANKAR H S, HCGP)
AND:
MR.GANESHA S/O HANUMANTHAPPA AGED ABOUT 24 YEARS AGRICULTURIST R/at DOGGALLI VILLAGE HARIHARA TALUK DAVANAGERE DISTRICT-577 601 …RESPONDENT
(BY SRI P B UMESH FOR SRI R B DESHPANDE, ADVOCATES)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 09/10.05.2019 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE IN S.C.NO.85/2017 – ACQUITTING ACCUSED NO.3 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR FURTHER HEARING, THIS DAY, K.S.MUDAGAL J. , DELIVERED THE FOLLOWING:
JUDGMENT
These appeals arise out of the common judgment and order of conviction of sentence in S.C.No.85/2017 and S.C.No.43/2017 passed by the I Additional District & Sessions Judge, Davanagere.
CRL.A No. 924/2019 C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019
will be referred to henceforth according to their ranks before the trial Court.
Nos.3 and 5 are son and wife of accused No.4. Accused No.7 is the wife of accused No.1. Accused No.6 is the mother of accused No.2. PW.1 the complainant and PW.4 are the brothers of the victim Siddappa. PW.3 is the son of PW.4. PW.12 is the wife of the deceased Siddappa. PW.11 is the brother of PW.12. Bheemappa the father of PWs.1 and 4 and Siddalingappa the father of accused Nos.1 and 4 were full brothers. There were property disputes between the accused party and the complainant party.
On 29.08.2016 at 8.00 a.m. when the deceased
Siddappa, PWs.2 to 4 and their servant PWs.5 and 8 were engaged in agricultural operations, accused Nos.1 to 3 attempted to breach the bund of canal to divert the water to their lands. When Siddappa resisted that, the accused being the members of unlawful assembly with common object of committing his murder, accused No.1 fisted on his chest, accused No.3 assaulted on his legs with spade MO.1 and
accused No.2 throttled Siddappa and committed his murder. The other accused abetted accused Nos.1 to 3 to commit his murder. PWs.1 to 4 shifted the victim to Bapuji Hospital, Davanagere where he was declared brought dead. In the same hospital PW.10 treated the injured PWs.3 and 4 and issued wound certificate Exs.P17 and P18.
on hearing the parties framed the charges against accused Nos.1 to 7 for the offences punishable under Sections 504, 323, 324, 506, 302, 447, 109 read with Section 149 of IPC. Since the accused denied the charges and claimed trial, the trial was conducted. In support of the case of the prosecution, PWs.1 to 18 were examined and Exs.P1 to P39 and MOs.1 to 12 were marked. After their examination under Section 313 of Cr.P.C., the accused neither filed any defence statement nor led any defence evidence. However, during cross-examination of the prosecution witnesses, they got marked Exs.D1 to D6 the portion of the statements of PWs.3, 4, 5, 8 and 11.
CRL.A No. 924/2019 C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019
punishable under Section 302 of IPC. The trial Court sentenced the convicted accused to various terms of
imprisonment and fine as per the table below:
| Sl. No. |
Offences Punishable under Section |
Imprisonment | Fine amount in Rs. |
Default sentence |
|---|---|---|---|---|
| 1 | 302 R/W Sec.149 of IPC (A1 and A2) |
Life imprisonment |
25,000/- | Simple imprisonment of six months |
| 2 | 324 read with 149 of IPC (A1 to A3) |
Simple imprisonment of one year |
5,000/- | Simple imprisonment of three months |
| 3 | 323 read with 149 of IPC (A1 to A3) |
Simple imprisonment of six months |
1,000/- |
Simple imprisonment of two months |
| 4 | 506 read with 149 of IPC (A1 to A3) |
Simple imprisonment of one year |
5,000/- |
Simple imprisonment of three months |
| 5 | 504 read with 149 of IPC (A.1 to A3) |
Simple imprisonment of six months |
1,000/- |
Simple imprisonment of two months |
the evidence of PWs.2, 5 and 8 the other eyewitnesses. It was held that the evidence of those witnesses were further corroborated by the medical evidence and the evidence of other witnesses.
Submissions of Sri C.H.Jadhav, learned Senior Counsel appearing for Sri Chethan Jadhav, learned Counsel on record for the appellants in Crl.A.No.1218/2019 and Sri Ravindra Deshpande, learned Counsel on record for the appellant in Crl.A.No.924/2019
circumstance fails. PWs.1 to 4 are all close blood relatives of the deceased and they had enmity towards accused. Therefore, they are all interested witnesses. The alleged eyewitnesses namely PWs.5 and 8 during evidence did not claim that they were eyewitnesses. Having regard to the relationship of PWs.1 to 4 inter se and the enmity between them and the accused party, their evidence needed corroboration. But PWs.5 and 8 did not corroborate the evidence. Even according to the prosecution, they were in all six persons including the deceased at the side of the complainant party, whereas the accused were only three persons. Therefore it could not have been difficult for them to overpower accused Nos.1 to 3 and rescue the deceased. But their conduct of not rescuing the deceased makes their presence at the scene of offence doubtful. Even PWs.3 and 4 suffering injuries also becomes doubtful. The conduct of the complainant party falsely implicating accused Nos.1 to 7 goes to show that they had bent upon the mind to implicate accused Nos.1 to 3 falsely. According to the prosecution quarrel took place when accused Nos.1 to 3 trespassed into the land of the complainant party and tried to divert water from the channel situated in the land of the complainant
party. But the evidence on record shows that the accused party had independent irrigation source for their land. Therefore that motive circumstance also fails. The trial Court despite acquitting accused Nos. 4 to 7, convicted accused Nos.1 to 3 for the offence punishable under Section 149 of IPC which is apparently illegal. The evidence on record does not show that there was unlawful assembly much less the assembly armed with deadly weapons to commit the offence against the deceased Siddappa, PWs.3 and 4. The trial Court has failed to appreciate the evidence on record in proper perspective. The impugned judgment and order of conviction and sentence of accused Nos.1 to 3 is erroneous and liable to be set aside.
(i) Thulia Kali Vs The State of Tamil Nadu1 (ii) Ganesh Bhavan Patel and Another Vs State of Maharashtra2 (iii) Md. Jabbar Ali and Others Vs State of Assam3
Submissions of Sri H.S.Shankar, learned HCGP:
and 35 clearly show that there were land disputes between
1 (1972) 3 SCC 393
2 (1978) 4 SCC 371
3 2022 SCC Online SC 1440
the accused party and the complainant party. Exs.P34 and 35 show that challenging the alleged partition deed of the year 2002, the complainant party had filed O.S.No.419/2015 and O.S.No.280/2015. Therefore the circumstance of motive stood established. Though PW.1 was not eyewitness, the evidence of PWs.2 to 4 show that they were all engaged in agricultural operations at the scene of offence. Out of them PWs.3 and 4 were injured in the said fight. The said evidence was further corroborated by the evidence of PWs.2, 5 and 8 and the medical evidence of the doctor PW.10 who had no reasons to create any documents regarding the injuries suffered by PWs.3 and 5. Therefore their evidence has to be accepted. The evidence of PWs.2 to 5 and 8 was consistent and cogent with regard to the presence of accused Nos.1 to 3 and the victim at the scene of offence and accused Nos.1 to 3 assaulting the deceased, PWs.3 and 4 and committing the murder of the victim Siddappa. Having regard to such evidence and the facts and circumstance of the case delay in filing the complaint cannot be blown out of proportion. The first concern of the victim would be to get medical aid for the victims. As per the evidence of the prosecution witnesses, first they took the victim to Bapuji Hospital, Davanagere,
then they filed the complaint. Such conduct and consequent delay are natural. The evidence of other injured eyewitnesses, medical evidence and other eyewitnesses clearly show that accused Nos.1 to 3 shared common intention to commit murder of Siddappa. In executing such intention accused No.1 fisted on the chest of the victim, accused No.2 throttled him by hands and accused No.3 assaulted him with spade on his legs. The trial Court though accepted sharing of common intention with reference to the case under Sections 323, 324, 506 of IPC exonerated him of such intention only with regard to the offence punishable under Section 302 of IPC which is apparently illegal. The order of conviction and sentence so far it relates to the accused Nos.1 and 2 is based on sound appreciation of the evidence on record and the applicable law. Therefore the same does not warrant interference of this Court. The judgment and the order of conviction and sentence has to be modified only to the extent of acquittal of accused No.3 of the offence punishable under Section 302 of IPC. Thus he seeks allowing the said appeal and dismissal of the appeals of the appellants.
judgment of the Hon’ble Supreme Court in M.Nageswara Reddy Vs The State of Andhra Pradesh and others4 .
Analysis:
accused party and the complainant party were closely related to each other. According to the prosecution, accused Nos.1 to
3 picked up quarrel with the deceased Siddappa on 29.08.2016 at 10.00 a.m. regarding drawing of the water from channel and in the background of property dispute. It is
4 (2022) 5 SCC 791
the further case of the prosecution that accused No.1 fisted on the chest of Siddappa, accused No.3 assaulted Siddappa with MO.1 spade on his left toes, accused No.2 throttled him and committed his murder. It is the further case of the prosecution that when the victim raised alarm, PWs.2 to 4 tried to intervene. At that time, accused No.2 assaulted PW.3 with spade and caused him injury. Accused No.3 assaulted PW.4 by his hand and caused him hurt. The case of the prosecution is based on the following:
(ii) The evidence of PWs.3 and 4 the injured
eyewitnesses;
Reg. Motive:
and even the tenor of cross-examination of the witnesses by defence Counsel clearly show that Siddalingappa father of accused Nos.1 and 4 and Bheemappa father of PWs.1 and 4 were full brothers. Their evidence goes to show that Bheemappa was given in adoption to his uncle. According to
PWs.1 to 4 Siddalingappa and the accused behind the back of
the complainant party and their father got their names mutated to the properties of the complainant party and questioning that they had filed the suit in O.S.No.419/2015 and O.S.No.280/2015. The contention of learned Counsel for the appellants/accused is that the witnesses admitted that there was partition in the year 2002, therefore the contention that there was property dispute cannot be accepted.
O.S.No.419/2015 on the file of the Principal Civil Judge, Davanagere and the order sheet. Ex.P35 is the copy of plaint and order sheet in O.S.No.280/2015 on the file of the Principal Civil Judge and JMFC, Harihar. The suit before Davanagere Court related to the property bearing Sy.No.270 of Doddabathi Village measuring 12 acres 8 guntas. The suit in O.S No.280/2015 pertained to the residential house and vacant site situated within the limits of Hanagavani Grampanchayath. The perusal of the both cases show that in those cases the complainant party has sought declaration that the partition deed of the year 2002 referred by the appellants’ Counsel does not bind them and they have questioned the validity of the same. The accused have not
disputed Exs.P34 and 35. Therefore there is no merit in the contention that the moment there was a partition in 2002, the motive circumstances fails. PWs.1 to 4 consistently deposed that the accused were irked by the demand of complainant party for properties and litigations raised by them and were proclaiming that if one person of the complainant party is eliminated, they get subdued. The aforesaid evidence were not impeached. Thus motive circumstances was proved.
Reg. Assault on Siddappa and PW.3:
place in the land bearing Sy.No.44 situated within Doggalli village limits/Harihara Rural police station limits. The victim Siddappa suffering the injuries and immediate death thereafter is not disputed in the cross-examination of the prosecution witnesses. So far as the place of offence, the accused themselves suggested to the prosecution witnesses that it was black soiled land and was not accessible to the vehicle.
wayward and he was squandering the family properties being fed up with that, PWs.1, 3 and 4 themselves assaulted him causing him injuries in the land. It was further suggested in the evidence of PW.1 that consequent to the assault, he had fallen in the land, on seeing that PW.4 started crying. Therefore PW.3 tried to rush in his bike to fetch an autorickshaw to shift the injured Siddappa, in that process he had a skid and suffered injuries.
of PW.10 the doctor who treated PWs.3 and 4 in Bapuji hospital and issued the wound certificate Exs.P17 and P18.
i) Abrasion over the post. aspect of right elbow 4 x 2 cm. ii) Contusion over the lateral aspect of right upper arm 4x3 cm.
iii) Abrasion over the medial side of left foot 2 x 1 cm.
hospital to which the deceased and the injured PWs.3 and 4 were taken was run by a political person, therefore it has to be assumed that the documents are concocted due to some political pressure.
3 who were few in number and rescued Siddappa, cannot be countenanced.
CRL.A No. 924/2019 C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019
body of Siddappa on 29.08.2016 at 3.30 p.m to 4.30 p.m. He
deposed that he found the following ante mortem injuries on the dead body:
examination he issued postmortem report Ex.P20 and on receiving the histopathology report Ex.P22 he issued final opinion as per Ex.P21.
the injuries on the neck could be caused by assault viz., pressing the neck by hand. He opined that the death was due to Vaso-vagal shock due to the injury to right carotid structure as a result of fatal pressure on the right side of the
CRL.A No. 924/2019 C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019
neck. Nothing was elicited in the cross-examination of PW.14 that the death was due to injury caused to carotid structure, as a result of fatal ante mortem pressure on the neck. The theory that the victim suffered injury while he was being shifted from the scene of offence is already overruled.
evidence of the injured eyewitness and other witnesses coupled with the other evidence on record lead to the only irreversible conclusion that accused No.3 shared the common intention with accused Nos.1 and 2 in committing his murder by throttling him.
to them also cannot be accepted more particularly when PWs.3 and 4 were also injured. More over there was no such inordinate delay in filing the complaint.
CRL.A No. 924/2019 C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019
Ganesh Bhavana Patel’s case and Md. Jabbar Ali’s case
suffice it to say that the said judgments cannot be justifiably applied to the present case.
troubling them, therefore if one of them is eliminated they get subdued. When the matter is pending before the civil Court, accused Nos.1 to 3 had no business to go the disputed land and indulge in physical violence. Even assuming that accused Nos.1 to 3 themselves were in possession of the land and complainant party themselves went there and picked up quarrel, the conduct of the law abiding person is to go to the police station and file a complaint against them or seek relief in civil Court.
liable to be convicted for the offences punishable under Section 323, 324, 302, 504, 506 read with Section 34 IPC. The impugned judgment and order requires to be modified accordingly. Hence the following:
ORDER
Crl.A.No.924/2019 and Crl.A.No.1218/2019 are hereby dismissed. Crl.A.No.1517/2019 is allowed.
The impugned judgment and order of conviction and sentence so far it relates to accused No.3 is modified as follows:
Accused No.3 is convicted for the offences punishable under Section 323, 324, 302, 504, 506 read with Section 34 IPC. The order of the trial Court with regard to disposal of the properties is maintained. Accused No.3 shall be present before the Court on 05.06.2023 for hearing on sentence.
List on 05.06.2023.
Sd/JUDGE
Sd/JUDGE
KSR,PKN
List No.: 1 Sl No.: 3
KSMJ & RDHJ:
05.06.2023
ORDER ON SENTENCE
Accused No. 3 is present before the Court. He is duly identified by his Counsel. Learned Counsel for accused No.3 submits that accused No.3 is young in age, he has dependant parents and has no other criminal antecedents. Considering the same, lenient view may be taken.
The minimum punishment prescribed for the offence punishable under Section 302 of IPC is imprisonment for life. There is no scope for exercising any discretion to impose punishment lesser than that. Considering the age of accused No.3, his social and economic background, if he is sentenced to imprisonment of life and fine, interest of justice would be met. Hence the following:
ORDER
For the offence punishable under Section 302 read with Section 34 of IPC, accused No.3 is hereby sentenced to life imprisonment and fine of Rs.25,000/-. In default to pay the fine amount, he shall undergo simple imprisonment of six months. The sentence of imprisonment passed by the trial
Court against him with reference to the other offences is maintained.
The trial Court shall issue modified conviction warrant accordingly. Accused No.3 shall surrender before the trial Court within two weeks.
At this stage, learned Counsel for accused No.3 submits application under Section 482 of Cr.P.C. seeking to stay the order of conviction and sentence passed by this Court. Learned HCGP seriously opposes the application.
Accused No.3 is sentenced to life imprisonment for the offence punishable under Section 302 read with Section 34 of IPC. Apart from that, the records show that he had not appeared before the trial Court, forcing the trial Court to register split up case against him. He has not undergone single day of detention. Having regard to the gravity of the offences and conduct of accused No.3 and other materials on record, it is not a fit case to grant stay/suspend the sentence. Hence the application is rejected.
CRL.A No. 924/2019 C/w CRL.A No. 1218/2019 CRL.A No. 1517/2019
Registry shall furnish free copy of the judgment to accused No.3 and communicate this order to the trial Court.
Sd/JUDGE
Sd/JUDGE
KSR
2 issues framed by the court
Whether the conviction of accused Nos.1 and 2 for offences under Sections 323, 324, 302, 504, 506 read with Section 149 IPC was sustainable?
Whether the trial court was justified in convicting accused No.3 only for offences under Sections 323, 324, 504, 506 read with Section 149 IPC and acquitting him of the charge under Section 302 IPC?
Colour shows how this judgement treated each authority
Thulia Kali Vs The State of Tamil NaduDistinguished¶38
(1972) 3 SCC 393 · Who else cites this
Ganesh Bhavan Patel and Another Vs State of MaharashtraDistinguished¶38
(1978) 4 SCC 371 · Who else cites this
Md. Jabbar Ali and Others Vs State of AssamDistinguished¶38
2022 SCC Online SC 1440 · Who else cites this
M.Nageswara Reddy Vs The State of Andhra Pradesh and othersRelied on¶39
(2022) 5 SCC 791 · Who else cites this
10 provisions across 2 enactments
Ganesha S/O Hanumanthappa
Basavarjappa S/O Late Siddalingappa
Maruthi S/O Late Channappa
State of Karnataka
K.S.Mudagal
Ramachandra D. Huddar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
