Fakeereddy Ningareddy Mundawad and Others vs State of Karnataka and Others

K.N. Phaneendra, J.—The above four appeals have been preferred calling in question the judgment and sentence passed by the District and Sessions Judge at Haven in S.C. No. 65/2006, wherein, the learned Sessions Judge has convicted Accused Nos. 1, 3, 6, 7, 8, 12, 13, 15 and 20 for the offences punishable under Sections 143 r/w. 149 of IPC and sentenced them to undergo Simple Imprisonment for 6 months with fine of Rs. 500/- each, with default clause of Simple Imprisonment for 15 days and one month, respectively. The said accused were also sentenced to undergo simple imprisonment for 2 years and to pay a fine of Rs. 500/- each in default to undergo simple imprisonment for one month for the offence under section 148 R/W section 149 of I.P.C.

Accused Nos. 3, 6, 7 and 15 were also convicted for the offence punishable under Section 302 r/w. Section 149 of IPC and sentenced them to undergo imprisonment for life and also to pay fine of Rs. 3,000/- each, with default clause to undergo Simple Imprisonment for one year.

Further, Accused Nos. 1, 8, 12, 13, 15 and 20 were also sentenced to undergo Simple Imprisonment for three years and to pay fine of Rs. 2,000/- each, with default clause of Simple Imprisonment of six months for the offence punishable under Section 307 r/w. Section 149 of IPC.

Crl. A. No. 2555/2012 is filed by Accused No. 15, Crl.A No. 2556/2012 is filed by Accused Nos. 3, 6 and 7 and Crl. A. No. 2570/2012 is preferred by Accused Nos. 1, 8, 12, 13 and 20, praying to set aside the above judgment of conviction and respective sentences against them and consequently, to acquit them of the charges leveled against them.

Crl. A. No. 2831/2012 is filed by one Ramanagouda, son of Bhimanagouda, who is the de-facto complainant before the Trial Court making all the accused as parties, except Accused No. 3, challenging the above said judgment, sought for modification of the judgment acquitting the other accused persons namely, Accused Nos. 2, 4, 5, 9, 10, 11, 14, 17, 18 and 19, consequently to convict all the accused for the offences under section 302 and 307 I.P.C. and also to enhance the sentence passed under Section 307 of IPC to all the accused persons.

Out of the above said appeals, three appeals are preferred by the convicted accused persons seeking their acquittal at the hands of this Court and one appeal is preferred by the de facto complainant seeking enhancement of the sentence as well as seeking conviction of other acquitted accused persons, at the hands of this Court. Out of Accused Nos. 1 to 20, Accused No. 16 is dead. Therefore, the proceedings are abated against him.

Before adverting to the grounds urged before this Court, it is just and necessary to bear in mind the brief factual matrix of the case.

All most all the above said accused persons and the deceased Basanagowda, his brothers and relatives are all residents of different nearby villages such as Halangi, Bylamadapur, Maradura, Marol, etc. The accused persons alleged to have developed vengeance prior to 26.11.2005 in respect of a civil dispute between the complainant - Ramanagouda (PW.21) and Accused Nos. 1 to 5 pertaining to Survey No. 56/1A of Bailamadapura village, with regard to possession and enjoyment of the said land. Accused Nos. 1 to 5 on one side and the deceased Basanagowda Bhimanagouda Patil of Maradura Village on the other side have been quarrelling with each other in this regard. In this background, it is alleged that in order to wreck vengeance and to do away with the life of the said Basanagowda Bhimanagouda Patil, all the accused persons have formed themselves into an unlawful assembly and on 26.11.2005 in the afternoon at about 12.30 p.m., went in a Mahindra Tractor-Trailer bearing Registration No. KA.27.T.5457 and 5458, to the said disputed Survey No. 56/1A and in furtherance of their common object, all the accused persons were armed with choppers, iron-rods, clubs and they were hurling abusive and threatening slogans against the said Basanagouda at the spot and on finding said Basanagouda in the said land, it is specifically alleged that all the accused persons have indiscriminately assaulted him with the deadly weapons, and also assaulted with their hands and kicked with their legs. The accused persons have also threatened the said Basanagouda Patil and his brother Sureshgouda with dire consequences of killing them. It is also alleged that the accused persons also assaulted another injured person viz., Suresh gouda Bhimanagouda Doddagoudra (PW.22/CW.10) on his head and other parts of the body and caused severe injuries with an intention to kill him, so that he should not survive. It is alleged that, all the accused persons after killing Basanagouda Patil had made attempts to kill Suresh gouda Bhimanagouda Doddagoudra and after threatening all the other persons, who were gathered there, went away from the spot. Thereafter the injured persons were shifted to Haven Govt. Hospital and from there shifted them to KIMS Hospital at Hubli. But on the way to KIMS Hospital Hubli, injured Basanagouda Patil succumbed to the injuries.

On the allegations, P.W. 21 lodged the FIR and Haven police have registered a case and thoroughly investigated the matter and submitted the charge sheet in Crime No. 119/2005, after committal, a case was registered in S.C. No. 65/2006. The accused persons were arrested during the investigation and some of the accused persons were released on bail. But, Accused Nos. 1, 3, 6, 7, and 15 were remained in judicial custody. After securing the accused, the Trial Court has framed charges for the offences punishable under Sections 143, 147, 148, 504, 506-(II), 302 and 307 r/w. 149 of IPC and the accused persons were tried before the Court.

The prosecution in order to bring home the guilt of the accused, examined PWs. 1 to 42 and got marked Exs. P1 to P63 and P63-A and material objects at MOs. 1 to 30. After the prosecution examined the witnesses, accused were also examined under Section 313 of Cr.P.C. The accused persons did not choose to lead any evidence on their defence. Therefore, the Trial Court after hearing both sides rendered the judgment of conviction and sentenced the accused as noted above.

Though the accused persons have challenged the above said judgment and sentence by way of three appeals, but virtually on similar grounds. It is contended that the Court below has not properly appreciated the oral and documentary evidence on record. The prosecution has failed to prove the guilt of the accused beyond reasonable doubt; therefore, the accused persons ought to have been acquitted by the Trial Court. The Trial Court in fact, has not bestowed its attention to the material contradictions and omissions in the evidence of the prosecution witnesses and those contradictions and omissions were brushed aside in one sentence stating that they were all minor discrepancies. Almost all the witnesses, except interested witnesses, were turned hostile to the prosecution. Even with regard to the recovery, the witnesses have turned hostile and recovery has not been established. The prosecution has also failed to prove the motive on the part of the accused and the learned Judge has not bestowed his attention to ascertain whether the witnesses are truthful and to be believed or not. Some of the eyewitnesses, in fact, are planted eyewitnesses, in order to exaggerate and improve the case of the prosecution and that it clearly goes to show that the case of the prosecution is not based on true facts and pad-up work has been done by the Investigating Officer.

During the course of the arguments, though not as a matter of admission, the learned counsel Sri S.S. Koti appearing for some of the accused, has also contended that the deceased as well as accused persons were quarrelling each other even much earlier to the incident with reference to the possession of the land in dispute and in fact, on that particular day, when the deceased and his coolie workers and his followers, were harvesting the sun flower crop in the said disputed land In order to protect their possession and the lands and their body, the accused persons have exercised their right of private defence, in that context, the incident happened, resulting in the death of the deceased Basanagouda. Therefore, this particular aspect has been totally lost the sight of the Trial Court. It is further contended by the learned counsel that the deceased Basanagouda is a politician and he has lot of enemies all around the village. Therefore, there are chances of somebody committing murder of Basanagouda and because of the previous ill-will and hatred between the accused and Basanagouda; a false implication might have been made alleging the offences against the accused. Lastly, it is contended that the investigation is perfunctory and the evidence of the complainant, who is the brother of deceased Basanagouda, who lodged a complaint, cannot be believed because, there is a long delay in lodging the complaint and investigation has commenced even prior to the registration of the case and the material factors have been suppressed by the police. Therefore, for all these reasons, the learned counsels for the accused have strenuously argued for acquittal of the accused.

Countering the arguments of the learned counsel appearing for the appellant Sri Mallikarjuna Swamy in Criminal Appeal No. 2831/2012 preferred by the de facto complainant seeking conviction of the acquitted accused persons and for enhancement of the sentence, and the learned HCGP have strenuously contended that the conviction and sentence passed by the Trial Court so far as the convicted accused are concerned is proper and on appreciation of the materials on record, the Court has come to such conclusion. They further contend that the Trial Court ought to have convicted the other accused persons also because, the prosecution has invoked Section 149 of IPC and proved the case, therefore the offence by one person amounts to offence by all, when all the accused went to the disputed place with a common object to do away with the life of the deceased Basanagouda. Therefore, the Trial Court could not have bifurcated the case against some of the accused for the purpose of acquitting them. The learned HCGP also supported the judgment of conviction and order of sentence of the trial Court submitting that the Trial Court has meticulously considered the evidence of the eyewitnesses, though they are related witnesses to the deceased. The evidence of the eyewitnesses is consistent and that itself is sufficient to convict the accused persons. It is not the quantity of the evidence that is required, but the quality that counts in the criminal cases. Therefore, the evidence of the injured eyewitnesses will play a dominant role in the criminal cases; When once the evidence is recorded, the Court has to weigh the evidence and come to the conclusion that whether the prosecution was fair enough in bringing-out the guilt of the accused. Looking from any angle, the judgment of the Trial Court does not suffer from any illegality or any incurable defects. Here and there, there may be some minor and ignorable contradictions and omissions. But, apart from some minor discrepancies, there is no room for interference. Hence, he pleaded for dismissal of the appeals filed by the convicted accused persons before this Court.

Having heard the arguments of the learned counsels appearing for the appellants and the learned HCGP appearing for the respondent-State, this Court has to examine, as to whether the Trial Court has committed any serious error in convicting and sentencing some of the accused persons and whether wrongly acquitted any of the accused persons.

In order to appreciate the evidence on record, the Court has to re-look and evaluate the materials placed for consideration of the Court.

PW.1-Lakshman Jalareddy is the inquest panch, who supported the case as per Ex.P1. PW.2-Sudhakar Bhaskar and PW.3-Mallaiah are the Panch witnesses to Exs. P2 and P3, under which the clothes of the deceased and injured PW.22 were recovered, which are marked at Mos. 1 to 7. PW.4-Yallanagouda and PW.5-Hanumanthagouda are the witnesses to spot-panchanama: Ex.P4 and seizure of the Tractor in question under Ex.P5. But, they did not support the case of the prosecution. PW.6-Eshawaraiah Veeraiah Kulkarni and PW.7-Veeraiah Shankaraiah Kulkarm are the panch witnesses to Exs.P6 to P10, under which clothes of Hamumagowda, seizure of documents produced by Mahadesh, seizure of clothes of accused -Veeranagouda, Mallikarjungouda, seizure of two motor cycles from Shivalinganagouda and Ramanagouda have been done. In fact, these two witnesses also did not support the case of the prosecution. PW.8-Naganagouda Kakade, PW.9-Mallareddy Somareddy Nadar and PW.10-Pulakeshappa Shivajappa Ghorpade are the witnesses to the circumstances i.e., to say, on instructions of Accused No. 6 Shivanagowda, the other accused persons had been to the land for harvesting the sunflower crop. These two witnesses also turned hostile to the prosecution. PW. 11 to 17 are the eyewitnesses to the incident. According to the prosecution, all these witnesses were working as coolies in the land of deceased Basanagouda on the date of the incident and they all witnessed the incident. But all these witnesses also not supported the case of the prosecution. The deceased is the maternal uncle of PW.18-Mohan Somareddy Desai. In fact, he deposed that he came to know about the incident through one Ramanagouda. PW.19-Tungamma is the wife of the deceased, who also stated that she came to know about the incident later. She also stated that there are lots of enemies to the deceased, as he was a politician. PW.20-Ananda Basanagouda Patil is also relative of the deceased, who later came to know about the incident through PW.21. He deposes with regard to the possession of the disputed land with the deceased. PWs.21 to 28 are the eyewitnesses to the incident; PW.21-Ramanagouda B. Doddagoudra is the brother of the deceased; PW.22-Sureshgouda is another brother of the deceased and injured witness; PW.23-Hanumanthagouda is also another brother of the deceased; PWs.24 and 25 are the relatives of the deceased; PWs.26 to 28 are the independent eyewitness who supported the case of the prosecution. PW.29-Dr. M.H. Moogali, Senior Specialist, KIMS Hospital, who treated PW.2-Injured; PW.30-Dr. Chandrakanth S. Katwe, who also treated the injured Suresh gouda (PW.22) and scanned the head and issued certificate as per Ex.P23. PW.31-Rajendra is a formal witness. PW.32-Chandrakanth is the photographer, who took the photos of the spot as per Exs. 25 to 30; PW.33- Gangappa Yamunappa Rathnakar, ASI, who visited the hospital at the earliest point of time; PW.34-Nagappa is a Police Constable, who carried the FIR to JMFC as per Ex.P31 on 27.11.2005 at 00.30 hours; PW.35-Lakshman Shivappa Pola is the Police Sub-Inspector, Haven, who visited the scene of occurrence; PW.36-Mahadevappa Shivappa Medleri is a Junior Engineer, who prepared a spot sketch as per Ex.P32; PW.37-Dr. A.J. Sunna Khan, who first seen the deceased and PW-22, at Haven and referred them to KIMS Hospital and he also examined the weapons and issued opinion as per Exs.P.33 to P.35; PW.38-Virupakshappa a retired Tahsildar, recorded the dyeing declaration of Sureshgowda (PW.22), who survived later; PW.39-Channappa, who carried the articles to the FSL; PW.40 -Dr. Gajanan of KIMS Hospital, conducted post-mortem examination of the deceased Basavanagouda as per Ex.P37 and also he gave opinion regarding the weapons (MOS. 12 to 21) as per Ex.P39; PW.41-Sanganabasappa, is the Investigating Officer, CPI, Ramdurga, who conducted inquest proceedings; PW.42-KC. Nagaraj is the PSI, who registered the case in Crime No. 19/2005 asperEx.P31(FIR).

Out of the above said witnesses, there is no need for us to discuss about the formal witnesses as noted above. The main witnesses who were relied upon by the prosecution are the eyewitnesses (PWs. 21 to 28) and witnesses to the motive factor as well as recovery of incriminating articles at the instance of the accused. When eyewitnesses are there to the prosecution case, the other circumstances and the motive factors would take the back seat. Therefore, it is just and necessary for this Court to ascertain whether the evidence of the eyewitnesses to the incident, though some of the eyewitnesses turned hostile, is sufficient and creates confidence in the mind of the Court that they are reliable witnesses and on the basis of their evidence, the Court can safely convict the accused persons. It is a fundamental principle of criminal jurisprudence that the discrepancies in the prosecution case if they do not go to the root of the prosecution case and if they are minor discrepancies, they should be ignored by the Court. On over all analysis of the evidence and on weighing the quality of the evidence, if the Court comes to the conclusion that the prosecution has proved its case, then there is no difficulty in convicting the accused persons. Therefore, this Court, as a First Appellate Court, is duty bound to re-assess the evidence on record to find-out whether the Trial Court has rightly directed itself in convicting some the accused and acquitting some. Hence, we prefer to deal with the evidence of the eyewitnesses at the first instance.

The prosecution in order to bring home the guilt of the accused mainly relied upon the evidence of PWs.21 to 28, who are the eye-witnesses to the incident. What is to be noted here is the evidence of PWs.11 to 17, who are also the witnesses examined as eye-witnesses. According to the prosecution, they were all present at the time of the incident as coolie workers, working in the land of deceased Basanagowda. But all these witnesses have turned hostile to the prosecution. We will discuss the reason as to why they have turned hostile or whether they were actually present and seen the incident.

Before that, we would like to discuss the evidence of the so called eye-witnesses PWs.21 to 28.

19.1 PW21-Ramanagouda Bhimanagouda Doddagoudra is one of the brothers of the deceased Basanagouda. He has deposed before the Court that deceased Basanagouda was doing agriculture in Madur village and he is also an active Politician. He has entered into an agreement with one Hanumanthagouda (father of Accused No. 1) regarding purchase of land bearing Survey No. 56/1 measuring 9 acres 16 guntas of Bailamadapura village, in this regard, there was a dispute and the dispute went up to the Court and the judgment came in favour of the deceased Basanagouda. In the year 2004, the deceased Basanagouda canvassed against one Shivanna in the Legislative Assembly Elections and in fact the said Shivanna defeated in the said election. In this context, the accused persons who were the followers of Shivanna and who also claim the disputed property as that of them, they were having ''grinding the axe'' against the deceased Basanagouda and they were all waiting for an opportunity to do away with the life of the deceased Basanagouda. In this background, it is further stated in the evidence of this witness that on 26.11.2005, the deceased Basanagouda and another brother Suresh gouda along with Hanumanthagouda, Mahaboobsab, Moulasab, Vinayakareddy had been to the disputed land for harvesting the sun-flower crop. This witness had been to the school as he was a school teacher. At about 11.00 a.m., while he was returning to the house from the school, he saw that all the accused persons in the Tractor of Hanumanthagouda (A5) were proceeding towards the land of deceased Basanagouda. Suspecting their conduct that something may happen, he went to the house and thereafter took his motorcycle and went to the land of his brother deceased Basanagouda. There he saw all the accused persons were quarreling with the deceased Basanagouda. Particularly, though stated that all the accused persons were quarreling with deceased Basanagouda, but specific allegations have been regarding the overt acts that accused No. 6 Shivalinganagouda assaulted with chopper on the head of the deceased and the deceased started screaming for help. At that time, A8 Veeranagouda Bharamagouda Hanumanthagouda with an iron road assaulted on his left leg. A7 Shankar Gouda Bharamagouda Hanumanthagoudra with a club assaulted on the chest and stomach. A3 Ramanagouda Hanumanthagouda Hanumanthagoudra with a club assaulted on the head of the deceased. A15- Fakeerareddy Ningareddy Mundavada assaulted with a club on the knee of the deceased and A16-Ningareddy Tirakaraddy Hadimani (dead) assaulted with an iron rod just below the knee of the right leg. Having sustained severe injuries due to the above said assault deceased Basanagouda fell down. On seeing this, other injured eye-witness Suresh Gouda (PW22) came to the rescue of deceased Basanagouda. At that time, A1-Shivanagowda assaulted on the left leg of PW22 and A8-Veeranagouda assaulted with an iron rod on the left forearm and A13- Erappa Fakeerappa Savoora assaulted on the left wrist of Suresh gouda PW22, A15-Fakeerareddy Nmgareddy Mundavada took out chopper from the hand of Shivanagouda and assaulted PW22-Suresh gouda on the head. A12-Mallikarjungouda assaulted with a club on the left knee. A20-Hanumanthappa Neelappa Undi with a club assaulted on the different parts of the body of PW22-Suresh Gouda. A18-Snpadagouda and A19-Lakshmana have instigated the accused persons to assault the deceased Basanagouda and injured Suresh Gouda to kill them, otherwise, the accused persons may not survive in the village. By doing so, the accused persons went away in their tractor.

19.2 It is further deposed by PW21 that another brother came in a Car and in that Basanagouda and Suresh Gouda were first shifted to Haven District Hospital and later they were referred to KIMS Hospital, Hubli. But on the way to the KIMS Hospital, at about 3.30 p.m., Basanagouda succumbed to the injuries and Sureshgouda was admitted to KIMS Hospital and he was treated there. Later, this witness had given complaint as per Ex.P21. Sureshgouda was in the Hospital for about one month as inpatient. He also spoke about the seizure of certain clothes of the deceased and also the injured. He identified those clothes of the deceased at Mos.3 to 7 which are Shirt, Banian, Dhoti, underwear and waist thread. He also identified the clothes of the injured as Mos.1 and 2 which are Lungi and Banian. He also shown the scene of offence to the police and the Police have collected the blood stained soil and un stained soil at the spot as per MOs.8 and 9. He also identified the weapons used by the accused persons as per MOs.11 to 16. He further reiterated that on that particular day, the accused persons have told the deceased not to harvest the crop as there is a case pending before the Court. But deceased Basanagouda told them that he has already won in the case, if any documents are there, the accused persons have to bring it to them. In this context, the incident said to have taken place.

19.3 Before adverting to the cross-examination of this witness, with regard to the defence taken up by the accused, it is just and necessary to have a glance of the evidence of other eyewitnesses.

19.4 PW22, the injured Sureshgouda Bhimanagouda Doddagoudra is another eye-witness. He also reiterated the same and he has stated that on that particular day, the accused persons came in Tractors and Motorcycles and asked the deceased why he is harvesting the crop and in that regard, there was some quarrel in the morning The accused persons went back and came again at about 12.30 p.m., in the Tractors and assaulted the deceased with the iron rods and choppers. He also specifically mentioned the names of some of the accused persons by naming them, and also specific overt acts of some of the accused persons who have specifically assaulted him. He has categorically stated that A3, 6, 7, and 15 have assaulted deceased Basanagouda, and A1 Shivanagouda assaulted him on his left hand by club, A15 Fakeerareddy took out chopper from the hand of A1-Shivanagouda and assaulted him on the head, A8- Veeranagouda assaulted on his left hand, A13-Erappa Fakeerappa Savoora assaulted him on the left wrist and A12- Mallikarjungouda assaulted him on the left leg and A20- Hanumanthappa Neelappa Undi assaulted him on several parts of the body. Due to the assault, he fell down sustaining grievous injuries. In fact, he has stated that one Lakshmana and Sripadagouda instigated the accused persons to assault the deceased and him. At the time of evidence, he has stated that he has suffered severe injuries to his leg and all the parts of the body. On that day, the other witnesses Moulasab, Mahaboobsab, Vinayakareddy Maradoora, and Hanumanthagouda shifted him and the deceased to the Hospital. He also identified his clothes as MOs.1 and 2 and also the weapons used by the accused as MOs.10 to 16.

19.5 PW24-Sureshgouda Araveppagouda Patil has specifically stated about the individual overt acts of the accused persons, but in his examination in chief, he has stated the presence of all the accused persons in a group of 15 to 20 came to the land of deceased Basanagouda at about 12.00 noon and assaulted deceased Basanagouda and Suresh gouda on all over the body and because they were afraid of the incident, they did not go near the place but they watched standing at a distance. It is further stated that by the end of the incident, they observed the Police vehicle coming towards the said land. Therefore, all the accused persons ran away from the spot.

19.6 Likewise, PW25-Vmayakareddy L. Madapura also deposed in the same manner. He has categorically stated the presence of the accused persons particularly, the accused persons who were assaulted the deceased as well as Sureshgouda. He has also specifically stated by giving specific overt acts of the accused persons who have assaulted the deceased Basanagouda with iron rod, clubs and choppers and also assault on the injured Sureshgowda on his head and also assault on all over the body. This particular witness in his examination in chief fully corroborates the evidence of PW21.

19.7 PW26-Neelappa Fakeerappa Koppad also reiterated as to how many accused persons have come to the particular place and also regarding the assault and sustaining of the injuries by the Basanagouda and Sureshgouda and later the death of the Basanagouda. He has also helped in shifting the injured to the Hospital.

19.8 PW27-Siddanagouda Sannabasanagouda Fakeeragoudra has deposed in an omnibus manner stating that all the accused persons at about 12.00 Noon came to the land of the deceased and about 4 to 5 persons have assaulted the deceased and some others have assaulted Sureshgouda and they sustained injuries and later, they were shifted to the Hospital. He has not specifically stated about the specific overt acts of the individual accused persons.

19.9 PW28-Yallappa Mahadevappa Kalavada has deposed about the presence of 20 to 30 persons including the accused persons who are before the Court and they assaulted the deceased Basanagouda and injured Sureshgouda and later they were shifted to the Hospital. This witness also does not specifically state about the specific overt acts of each of the accused persons. But he has specifically stated about the presence of the accused persons at the scene of offence and assault on the deceased and the injured Suresh Gouda.

On perusal of the above said evidence of the eyewitnesses, though there are certain discrepancies in their examination in chief in not telling the specific overt acts of the accused by some of the eye-witnesses, but PW21 and the injured eye-witness PW22 and some of the eye-witnesses as narrated above have specifically stated about the avert acts of the accused persons who are convicted for the offence punishable under Sections 302 and 307 of IPC, with reference to their overt acts and holding deadly weapons in their hands and assault made on the deceased and the injured. Though some of the witnesses have not specifically stated about the overt acts, nevertheless, they have stated about their presence at the spot and the presence of the accused persons.

Therefore, looking to the above said evidence of the eye-witnesses, the prosecution has placed some materials, if they are un-rebutted, are sufficient to draw an inference about the presence of the accused persons at the spot and assault made by them on the deceased and the injured person. There is no dispute regarding the homicidal death of the deceased, the death of the deceased and injuries sustained by Sureshgouda are also fully supported by the evidence of the doctors.

PW29 Dr. M.H. Moogali, Senior Specialist at KIMS Hospital, who has treated the injured PW22 Sureshgouda has specifically stated about the injuries sustained. He has deposed that on 26.11.2005 at about 4.10 p.m., he has examined the injured Sureshgouda and observed the following:

(1) Fracture of Ulna

(2) Fracture of tibia and fibula of left leg

(3) Fracture of Medial and lateral Meliyolet bone

(4) Fracture of 2nd and 4th fingers of the right leg

(5) Fracture of 3rd and 4th fingers of the left hand.

On the basis of the CT scan he observed that there was fracture of parietal bone and right temporal bone and there was hemorrhage in the brain. Accordingly, he issued the wound certificate as per Ex.P22. There is nothing more elicited in the cross-examination of this witness, except suggesting that no such injuries were found on the injured. But the fact remains that immediately after the incident, injured was treated by the doctor and found several fractures including head injury fracture to the temporal region.

PW30-Dr. Chandrakanth S. Katwe has stated in his evidence that one Dr. Surendra has seen the injured PW22 Sureshgouda, scanned the head and observed that there was a fracture of parietal bone and there was hemorrhage in the brain and accordingly, he gave his opinion as per Ex.P23. In the course of cross-examination, it is baselessly suggested that he neither treated nor seen the injured. Of course, he has admitted that he has not brought the scanning report to the Court and not furnished the same to the Police, but nevertheless he has issued the certificate as per Ex.P23. If at all there were any discrepancies in Ex.P23 and they dispute it, it is the duty of the accused to secure the documents through this doctor. Therefore, we are of the opinion that immediately after the incident, it shows that the injured was treated and the sequence of events show that the evidence of the doctors also corroborates the evidence of the eyewitnesses as well as the injured witness.

PW40-Dr. Gajanan Hosabanna Nayak is the doctor who conducted the Post Mortem examination on the deceased Basanagouda. He has stated that he was working as Associate Professor in KIMS Hospital and on 27.11.2005 he conducted the Post Mortem examination on the deceased Basanagouda between 10.00 am to 11.00 am., and issued the Post Mortem report as per Ex.P37. Further, he has categorically stated that there were as many as 15 injuries on the dead body which are as follows:

(1) Incised injury of size 6 x 2 x 0.5 cm, muscle deep present in the middle of the forehead.

(2) Chopped injury of size 6 x 1 x 1 cm, bone deep present.

(3) Chopped injury of size 1 cm x 0.5 x 1 cm muscle deep present 4 cm above the external occipital protruberence.

(4) Contused abrasion of size 9 cm X 3 cm, present at outer aspect of right forearm, 1 cm above the elbow joint, beneath right humorous bone fractured at lower end, extravagation of blood present at fracture site.

(5) Chopped injury of size 2.5 X 1 X 0.5 cm presents 2 cm below the right. Elbow joint, in the outer aspect of right arm.

(6) Contused abrasion of size 6 X 3 cm, present over outer aspect of right wrist joint.

(7) In the abdomen, over right flank region, 21 cm away from the Umbilicus - Incised injury of size 2 X 2 X 0.5 cm, muscle deep present.

(8) Over left wrist joint contused abrasion of size 3 X 3 cm present.

(9) 15 cm below right knee joint, incised injury of size 3.5 X 1 cm X 0.5 cm, muscle deep present.

(10) 3 cm below injury No. 9, 3.5 X 10.5 cm, muscle deep injury was present.

(11) By the side of injury No. 10, contused abrasion of size 4 X 2 cm present.

(12) 9 cm below the Lt. Knee joint, 2 X 1 X 0.5 cm, bone deep, incised injury present.

(13) 3.5 cm below injury No. 12, 4 X 2 X 0.5 cm, incised injury present.

(14) By the side of injury No. 13, 2 X 0.5 X 0.5 cm, muscle deep incised injury present.

(15) 2 cm below injury No. 13, 3.5 cm X 2.5 X 0.5 cm, bone deep incised injury present. Below Lt. Tibia and Fibula fractured in the middle, extravasation of blood present at fracture site.

He has also given the opinion regarding the weapons sent to him. He also identified those weapons before the Court and he has stated that those injuries could be caused from the weapons which are seen by him. He has given specific opinion as to the injuries found on the dead body could be caused by assaulting with such weapons. There is no specific suggestion in the course of cross-examination as to why this witness has to tell lie, he has not given any incriminating evidence against the accused persons except stating the existing facts. Much has been concentrated with regard to the rigor Martis, development of the same and disappearance of the rigor marks from the body. But here, the cross-examination looses its significance because soon after the incident, injured was shifted to the Hospital first at Haven and then to the KIMS Hospital. But by the time, the said injured were shifted to the Hospital, on the way to the Hospital injured died. Therefore, it shows the sequence of events clearly discloses that immediately after the incident, the deceased and injured were shifted to the Hospital. What is significant from the evidence of this doctor is due to the injuries the deceased died a homicidal death. The doctor has issued the Post Mortem report as per Ex.P37, wherein he has categorically stated that the death was due to shock and hemorrhage as a result of multiple injuries.

Looking to the above said evidence of the doctors as well as the evidence of the eye-witnesses. The statement of PWs.21 and 22 are fully corroborated by the evidence of the eyewitnesses as well as the evidence of the doctors. The injuries found on the deceased and the injured unequivocally suggest they were mercilessly in a brutal manner assaulted which also shows the intention of the assailants, to do away with the life of those persons.

In this back ground before adverting to the grounds urged by the accused persons during the course of cross-examination of these witnesses, let us have a glance of the statement of other eye-witnesses who are examined before this Court as PWs.11 to17. Though these witnesses were silent, but they never supported the case of the prosecution to any extent. They have in fact stated that they never gone to the said land on that particular day. None of these witnesses even in the course of cross-examination by the prosecution have deposed anything with regard to the incident.

But PW18- Mohan Somareddy Desai, who came to know about the incident, went to the KIMS Hospital and saw the deceased and also the injured and came to know about the incident. Therefore, he is not an eye-witness and he is only the circumstantial witness.

PW19 is the son of the deceased Basanagouda. He also came to know about the incident later. Thereafter, he went to the Hospital and saw the deceased and the injured. In the course of cross-examination of these two witnesses, the accused persons tried to elicit that the deceased was not at all in possession of the disputed land and he was a Politician acquired lot of enemies and therefore some other persons might have committed the murder of the deceased and etc.,

Likewise, PW37-Dr. A.J. Sunna khan has deposed that on 26.11.2005, he was working as a doctor at Haven. At about 2.05 p.m., he saw the deceased Basanagouda who was alive and gave the first aid and immediately directed to shift the injured to the KIMS Hospital. He has also deposed that he has seen those injured persons for the first time with several grievous injuries on all over the body and directed them to shift to the KIMS Hospital. Later, he gave the opinion as per Ex.P34 with regard to the injuries sustained by the injured. He denied the suggestion that there is lot of differences in the MLC register and also the Medical certificate issued. But, he denied the said suggestion. But, nothing is shown to the Court that there is much difference between the injuries sustained by the deceased and the injured with reference to the wound certificate as well as Post Mortem report with that of MLC register. Therefore, this witness also supported that immediately after the incident, the injured persons were brought to the Hospital and he has seen that they sustained severe injuries. Though some evidence is lacking with regard to the recovery of the weapons at the hands of the accused as I have narrated, while describing the evidence of the witnesses, though the witnesses have turned hostile to the prosecution so far as recovery of weapons are concerned, nevertheless, the evidence of the Investigating Officer is there and the other materials are also available in order to corroborate the evidence of the Investigating Officer which we would like to discuss them little later.

Now, coming to the cross-examination of the witnesses i.e., PWs.22 to 28. It is argued before us by the learned counsel that though PW21 has seen the incident, he never made any attempt to rescue the deceased nor he has informed the Police immediately. There is long delay in lodging the complaint. The investigation has commenced even prior to the registration of the case and further there was quarrel between two parties, perhaps the accused persons might have used private defence of their property in order to protect their possession in Survey No. 56 as there was dispute pending before the Court. Therefore, mainly on the above said three important aspects, the cross-examination has been adverted to. Of course, there is no dispute with regard to the suggestions made to these witnesses including the wife of the deceased with regard to the fact that the deceased was a Politician and he has got lot of enemies in the surrounding villages. Such elucidation of facts itself is not sufficient to come to any conclusion that some other place incident had happened and the deceased and PW22 have sustained injuries in some other incident and that has been taken advantage for the purpose of laying a false claim against the accused persons.

In this background, the cross-examination of the witnesses has to be looked into. The learned counsel for the appellants have also relied upon the evidence of PWs. 33, 35, 41 and 42 who are the police witnesses. Of course, in the evidence of these witnesses, it is elicited that the Police have reached the spot even without a complaint and shifted the injured to the Hospital at about 2.05 p.m. The FIR lodged in this case shows that Ex.P21 was submitted on 26.11.2005 at 22 hours, but it was recorded in the Hospital at 19.30 hours. During the course of cross-examination of PW1, this delay has been mainly concentrated. But it is stated by him even in the course of cross-examination that he did not go to the scene of offence immediately from the school directly, but he went to his house and then gone to the place. The learned counsel has argued that if at all he has suspected that accused persons will do something near the land of deceased Basanagouda, he would have directly followed them, but it cannot be imagined by the Court that at that time itself, he would expect that all the accused persons intended to commit any offence against the injured persons or they were only going to the spot to prevent harvesting of the crop by Basanagouda. Therefore, it cannot be imagined that he should have immediately followed the accused persons. He reiterated in the cross-examination that when he went to the spot, at about 100 to 150 meters away he saw the incident that all the accused persons suddenly attacked the deceased and other persons did not go to rescue him except Sureshgouda (PW22). It is very specifically suggested that the incident was not visible from the place where this witness was standing. This clearly gives an indication that the presence of this witness was admitted at the spot and it should be established as to why he should file a false complaint. It is also suggested that though he could not able to witness the incident from the place where he was standing because there were lot of country fence in between the place of incident and the place where this man was standing. Therefore, looking to the evidence of this witness, the presence of this witness is not disputed and even in the course of cross-examination, the assault on the deceased has been reiterated in spite of searching cross-examination. When the accused persons were running away from the spot after assaulting on seeing the Police coming to the spot, then only he went near his injured brothers and saw sustaining of severe injuries and thereafter he shifted his brothers to the Hospital. Very peculiarly it is elicited in the course of cross-examination that he was in a hurry to shift the injured persons to the Hospital. Perhaps that may the reason why, he did not lodge any complaint at that particular point of time, not given any information to the Police vividly about the incident. Even in the further cross-examination, it is suggested that his brother has got lot of enemies and somebody has committed the murder of the deceased taking advantage of the same, this witness has lodged a false complaint against the accused. This also clearly goes to show that some incident had happened and in that the deceased and the injured have sustained injuries. But the accused persons went to depict before the Court that injuries were sustained in some other incident, but no other materials are produced before the Court to show that any incident had happened in which the deceased and injured have suffered the injuries. Therefore, looking to the cross-examination, the incident as such is not seriously denied and sustaining of the injuries by the injured person is also not specifically in dispute. But it is only stated that they have sustained those injuries in some other incident. Some discrepancies have been elicited in the course of cross-examination that he has not specifically stated about the accused persons hurling slogans and went towards the land of deceased Basanagouda where he was harvesting the sunflower crop. The rest of the suggestions are denying the whole incident. Therefore, it is concentrated that there is delay in lodging the complaint. There is an explanation in the evidence of PW1 that he was concentrating on the health of the deceased perhaps that may be the reason, he immediately shifted the injured to the Hospital at Haven and then to the KIMS Hospital for the purpose of getting him the treatment and perhaps after the death, he might have given the complaint to the Police.

In this background, the evidence of PW33 also plays a dominant role. PW33-Gangappa Yamunappa Rathnakar has stated that on 26.11.2005 from 9.00 a.m. he was in the Police Station as Station House Officer and on that day, at about 12.45 p.m., he has received a phone call as to some incident may take place in the land at Madapura village with regard to the harvesting of the sun-flower crop. Immediately he informed the same to Hosaritti police station through wireless and asked them to go to the spot and thereafter, he informed the same to the Circle Inspector of Police and to the PSI and proceeded to the scene of offence. He also came to know that two injured persons were shifted to the Hospital, then he came to Haven Hospital and enquired about the injured persons and then he went to the Hubli KIMS Hospital and there he recorded the statement of Ramanagouda Patil PW21 and after returning to the Police Station, registered a case. Therefore, the learned counsel contends that even prior to the registration of the case, he went to the spot and also seen some of the witnesses and injured persons, but he immediately did not record the statement. In the course of cross-examination, it is elicited that before going to the spot, he did not mention the same in the Station House Dairy, but he has recorded with regard to the shifting of the injured in the Station House Dairy and he wrote it afterwards. He has also stated that by the time he reached the Hospital, it was 4.30 p.m., he enquired Ramanagouda, but he did not give any statement at that time, till they reached Hubli. During the course of cross-examination of PW21, who has also stated that he was in a hurry to take his brother to KIMS Hospital and he was concentrating on the health of the deceased. Therefore, he did not lodge any complaint that is why; this witness also stated that till they reached Hubli KIMS Hospital, no complaint was lodged. It is also elicited that the complainant Ramanagouda told this witness that he would not give any complaint till the Senior Officer comes to the spot. This has been much concentrated by the learned counsel. When the evidence of this witness clearly discloses that some of the Police Officers PW35-Lakshmana Shivanna, PSI and PWs.41 and 42 though had been to the spot, but they have not recorded the statement of the witnesses.

PW35-PSI has also stated in this context that on 26.11.2005 after receiving some information, with regard to some galata, he went to the spot, by the time he reached the spot, at some distance some people came from the scene of offence and they told that Basanagouda and Suresh Gouda have sustained injuries. Immediately along with those witnesses, this witness also went to the spot and saw the deceased and Sureshgouda sustained injuries. Immediately, the injured were shifted to the Hospital and he informed the CPI and then he went to the Hospital. He did not record the statement of any of the witnesses immediately after the incident. On the other hand, he has stated that Basanagouda died before shifting him to the KIMS Hospital and injured Sureshgouda who has sustained injuries was not in a position to give any statement. But he also does not stated as to why he has not recorded the statement of PW21 at that particular point of time.

The above said circumstances and evidence placed show some lapses on the part of the investigating agency, they would have registered the case and proceeded to the spot or even they would have recorded the statement of PW21 at the earliest point of time. If these lapses are not explained properly by the prosecution, then only, it may become fatal to the prosecution because without registration of a crime, there cannot be any investigation. But as I have already narrated that the explanation as already been given by PW21 that, he did not give any statement before Police nor informed the Police because he was in a hurry to take care of his brothers. Further, added to that, the evidence of PWs.33, 35, 41 and 42 does not disclose that at any point of time, they have received any proper and correct and concrete information with regard to the commission of any cognizable offence by anybody so as to register a case. The materials placed before the Court clearly discloses that they have received some distorted information regarding the sustaining of the injuries by the injured persons or some galata being taken place near the disputed land etc.. Perhaps that may the reason the Police might have not received correct and proper information with regard to the commission of offence by somebody and in that context some injuries have sustained by the injured person. Therefore, in the absence of specific facts providing concrete information about the commission of a cognizable offence, they might have not registered a case. In the absence of such materials, we cannot say that there is a long delay in lodging the complaint or any deliberate action on the part of PW1 in lodging the complaint within time.

In this background, the learned counsel has relied upon a decision reported in State of Andhra Pradesh Vs. Punati Ramulu and others, wherein, the Hon''ble Apex Court at paragraph 5 has said that-

"The first information report or the statement recorded during the investigation play a dominant role. Investigating Officer deliberately not recording the FIR after receipt of the information of cognizable offence, registering the complaint as FIR after reaching the spot and after due deliberation, consultation and discussion, complaint could not be treated as FIR, it can be the statement hit by Section 162 of Cr.P.C." 36. In another ruling reported in H.C. Karigowda @ Srinivasa and Others Vs. State of Karnataka, wherein this Court has reiterated the same principles and held that-

"If the Investigating Officer deliberately does not record the FIR after receipt of information of cognizable offence -registering the complaint as FIR after reaching the spot and after due deliberation, consultation and discussion, such complaint cannot be treated as FIR, it would be only a statement made during investigation and hit by Section 162 of Cr.P.C. 37. In another ruling reported in 2004 SCC (Crl.) 1776 between State of Punjab Vs. Daljit Singh and another, wherein the Hon''ble Apex Court has held at paragraph 8 that-

"FIR lodged at about 6.00 a.m., on the next day of the incident. PW7 soon after the incident going to a village 5 km, away from the place of incident to inform his grandmother about the incident. But, no explanation has been given as to why he could not go to the Police Station which was situated 5 kms, away in the opposite direction. That apart, no explanation is given as to why delay in sending FIR to the Magistrate. No effort is made to take the assistance of the villagers or the members of the Panchayath and others present at the place of incident to lodge the complaint. Prosecution has failed to explain the delay in filing the complaint. Therefore, the case was doubtful". 38. Looking to the above said decisions, in my opinion, if there is no plausible and acceptable explanation is there in the evidence of the prosecution, delay would definitely defeat the case of the prosecution, but in all the cases, the said principles cannot be pressed in to service. It all depends upon the facts and circumstances of each individual case.

It is worth to refer here a case reported in Padmanaban Vs. State by Inspector of Police, Tamil Nadu, , reiterating that-

"If the delay in lodging FIR is sufficiently explained- when particularly the witness who lodged the complaint gave priority to the treatment of injured deceased and they were busy in bringing the injured to the Hospital at the earliest possible opportunity, and they were in grief they would not able to lodge complaint, such explanation are plausible and wholly justifiable." The above said observation made by the Hon''ble Apex Court at paragraph 23 and 25 are even on facts in a straight jacket manner applicable to the present case, as the sequence of events shown that at the time of the incident, PW21 has seen the ghostly incident of accused persons mercilessly assaulting his brothers and he was afraid to go near the place of incident to rescue his brother because of the aggressiveness of the accused persons. Immediately after the incident, he was worried about his brothers in taking them to the Hospital and getting them treatment. It is further stated that some Police had come to the spot and to the Hospital perhaps, on seeing the Officers who went to the Hospital, he thought that he should give a report to the higher rank officer, so that the incident should be properly investigated. Such attitude of PW1 cannot be dubbed as deliberate action on his part. Therefore, what was transpired in the mind of PW21 has to be taken into consideration in order to consider whether there was inordinate delay in lodging the FIR. Considering the above said circumstances, we are of the opinion that there is no unreasonable delay or deliberate action in lodging the FIR.

Now, coming to the point of investigation being commenced even prior to the registration of the case.

The learned counsel for the appellants has not pointed out specifically as to what exactly the investigation done prior to the lodgment of the complaint. As could be seen from the evidence of PW33, he has stated that he visited KIMS Hospital and there, PW.21 has given the complaint and thereafter, inquest was conducted and dead body of deceased Basanagouda was handed over to the doctor for Post Mortem examination and on 27.11.2005, the dead body was returned to PW1 after the Post Mortem examination. He has admitted in the course of cross-examination that on 26.11.2005, after he came back to the Police Station, he has recorded the phone call received by him with regard to some galata is being taken place at the scene of offence. And thereafter, only he told Hosaritti Police to go to the spot. Therefore, it shows that after registration of the case, the actual investigation has been started. Though the Police Officers have visited the spot and also to the Hospital and met some of the witnesses of this case, but they have not recorded any statement of the witnesses, not conducted any spot panchanama or inquest prior to the registration of the case. As I have already narrated that prior to going to the spot, as could be seen from the evidence of the witnesses, they were not having complete, concrete material to come to any definite conclusion that there was a cognizable offence was committed; they had only information that some galata is being taken place at the scene of offence. Therefore, in that context, they proceeded to the spot. When they had been to the spot, as a consequential act, they have sent the injured to the Hospital and they also proceeded to the Hospital and there PW21 has given the complaint. There were no chances of the Police Officers registering a case suo-motu for the purpose of investigation. Though there is some delay in lodging the FIR, but at any stretch of imagination, it can be said that investigation was conducted prior to the registration of the case. Even some lapses or defects in the investigation cannot be made as a ground for to totally disbelieve the case of prosecution. As a general principle, it can be stated that error, illegality or defect in the investigation cannot have any impact unless total miscarriage of justice is brought about or serious prejudice is caused to the accused.

It should also to be born in mind that, If the prosecution case is established otherwise than the defects in the investigation established by the evidence adduced, any failure or omission on the part of the Investigating Officer, cannot render the case of the prosecution un-believable. Of course, the normal registration of the case should have been made by the Police as soon they came to know about the cognizable offence being committed when the Police Officers in this case went to the spot before shifting the injured to the Hospital. But as I have said that the Police have actually proceeded to the Hospital by sending the injured to the Hospital and simultaneously they also went there and recorded the statement of one of the eye-witness.

In this context, It is worth to note here s decision of the Hon''ble Apex Court reported in Sri Sambhu Das @ Bijoy Das and Another Vs. State of Assam, , wherein, the Hon''ble Apex Court has stated that-

"FIR was registered after the inquest proceedings. The Court said that the object of inquest is only to ascertain whether the person was died under un-natural circumstances and if so, what the cause of death is. Therefore, it will not affect the validity of the inquest report merely because it was conducted prior to registration of the case. While considering delay in FIR or the defects in the investigation, the court should be very cautious and bear in mind the credit worthiness of the ocular evidence by the prosecution. By that ocular evidence of the prosecution, the element of delay in registering the FIR or sending the FIR to the Magistrate or some irregularity in registration of the case themselves would not in any manner weaken the prosecution case." 44. As could be seen in this case earliest information received through phone by PW33, there is no cross-examination that he received the complete information about the incident or any cognizable offence being committed. He only receives the information that some galata may take place at Bailamadapura village, with reference to harvesting of sun-flower crop. In the cross-examination he has admitted that after he took the injured persons to the Hospital, he actually mentioned the same in the Station House Dairy. After returning to the Police Station, nowhere it is suggested to this witness that he has received the information over phone, with regard to commission of any cognizable offence so as to impute the knowledge of the entire incident so as to register the case and then to proceed to the spot. PW33 is the first person who receives the information and sends the same to PW35-Lakshmana Shivappa Pola, who was working as a Police Constable in Hosaritti Police Station and he proceeds to the spot on such information and they came to know near the spot that Basanagouda and Sureshgouda were assaulted by some people. Immediately, they proceeded to the spot and they remained there itself after sending the injured to the Hospital. Even in the course of cross-examination of this witness also nothing has been suggested that prior to going to the spot, they knew about the assault. Therefore, in our opinion, there is no chance for these witnesses to immediately and swiftly to go back to the Police Station and register a case without attending the injured person to send them to the Hospital. Therefore, looking at the circumstances prevailing in this particular case, one cannot say that the investigation was started without registration of the case. In our opinion, no investigation has been done prior to the registration of the case, but adhering to the information received they proceeded to ascertain as to what exactly happened and that cannot be called as the part of the investigation. Therefore, the said ground urged before this Court by the learned counsel for the appellants is also not tenable.

The learned counsel for the appellants/convicted accused persons strenuously contended that though there is no defence taken by the accused persons with regard to right of private defence of property and their body but the tone and tenor of cross-examination made to the witnesses show that the deceased and his brother and other coolie workers alleged to have been gathered in the disputed land were also holding deadly weapons like sickle, chopper for the purpose of harvesting the crop. In that context, these accused persons have in order to protect the landed property, which belong to them must have retorted the deceased and his followers in order to protect their possession and in that context the incident must have happened and in order to protect and save their property and body, some incident might have happened and death of Basanagouda might have occurred and Sureshgouda might have been injured. Therefore, though self defence has not been taken, surrounding circumstances have also to be taken into consideration to ascertain whether, the accused persons have exceeded their right of private defence. It is submitted that right of private defence for body and property do exist and this particular aspect has not been considered. Therefore, he requests this Court to consider the said aspect.

Of course, there is no need for the accused to take a specific defence of private defence of property or body. But even by the available evidence, if the accused are able to show the existence of the right of private defence of body or property and show some evidence placed before the Court, the Court has to consider such defence of the accused.

It is worth to note here a decision cited by the learned counsel for the appellants (convicted accused) reported in Jai Bhagwan and others Vs. State of Haryana, , wherein the Hon''ble Apex Court has held that -

"S.300, S. 104, S.411-Murder-plea of self defence - allegations that accused persons on exhortation given by them, before murderously assaulted deceased with deadly weapons - incident arising out of land dispute - Offence taking place in the land in possession of the accused persons. The deceased and his sons coming to the land in possession of the accused in a group to irrigate the land, it amounts only to criminal trespass within the meaning of Section 411 of IPC, right of accused does not extend to causing death, but extended only to causing of harm other than death - accused persons inflicting fatal injuries causing death of the deceased - case not of free-fight-offence of murder made out.

The plea of private defence of property -Evidence showing that the accused caused grievous hurt by dangerous weapon accused one of co-owners and possessor of the land where occurrence took place - is entitled to protection of the right of private defence of property u/s. 104 of IPC. Conviction of accused u/s. 326 was set aside."

Relying upon the above said decision, the learned counsel for the appellants/accused Shri S.S. Katti, submitted that in this case if the materials on record are analyzed in their proper perspective, admittedly the accused persons as well as the deceased Basanagouda were fighting for the landed property and in fact the accused persons have grown the sunflower crop and the said Basanagouda wanted to harvest the crop. In this background, the incident must have happened and while exercising their right of private defence of body and property, they might have caused some injuries. Therefore, he contended that the Court has to look into the evidence and pass appropriate order in this regard.

In this background, before adverting to the evidence on record we should bear in mind what is the right of private defence, when the accused entitle for such defence and when it starts and when actually ends.

Section 96 to 105 of IPC deal with the right of private defence of the body and of the property. There is no need for in detail reiterating the provisions. It would suffice to say that the sum and substance of the above said provisions. On meaning full understanding of the provisions it is clear that, it is not an offence which is done in exercise of right of private defence of the body and of property. Every person has got right of private defence subject to certain restrictions under the said provisions. It should be borne in mind that right of private defence in no case extends to the inflicting of any harm other than death. It should be proved that it was absolutely necessary to inflict injury on the adversary for the purpose of self defence.

Right of private defence of the body extends subject to the restrictions mentioned in Section 99 of IPC, to voluntary causing of death or causing of any harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions mentioned in Provision 100 of the IPC namely (1) such an assault by the adversary may reasonably cause the apprehension that death will otherwise be the consequence of such assault; (2) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Then only right of private defence can be exercised.

Right of private defence of the body and of property always commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commence an offence though the offence may not have committed but creates an apprehension of danger to the body or property and as log it continues. Even if it may extend to the commission of death when the other party or the aggressor attempting to commit the murder or causing grievous hurt to the person who exercise the right of private defence of the body or of his property. So far it relates to right of private defence of the body and of property is concerned, even a person can cause or inflict such an injury which may cause the death of the opposite party when the said party attempting to commit the murder or to cause grievous injury, which occasions the exercise of right when the right to the property is affected by means of robbery, house breaking, mischief by fire or theft or house trespass in the circumstances as may reasonably cause apprehension that the death or grievous hurt will be the consequence and if such right of private defence is not exercised. The above said rights are also subjected to the restrictions in the other provisions. The right of private defence of the body and of property continues till the apprehension continues and as soon as apprehension is disappeared, the right is also extinguished. Likewise right of private defence of property against theft, robbery, house breaking, mischief, trespass continues as long as the apprehension of death or grievous hurt will be the consequence of such trespass continues and is extinguished as soon the said threat disappears.

It is also a recognized principle of law that the said right cannot be exercised in a vacuum. The right of private defence as could be seen from the provisions of IPC is essentially a defensive right circumscribed by the statute, available only when circumstances clearly justify it. The right is not to be allowed to be pleaded or availed of as a pretext for a vindictive, aggressive or retributive purpose. The right is available against an offender. An aggressor himself cannot claim the right of self defence. The right of private defence cannot be used as a shield to justify an act of aggression. Therefore, no one is allowed to devise a mechanism whereby an attack may be provoked as pretence for killing The said right vests even in the strangers for the defence of the body and property of other persons against the offences mentioned therein. Therefore, the courts have to be more careful in seeing that no one on the mere pretext of exercise of the right of private defence takes place in a quarrel between two or more persons and inflict injuries on the one or the other. Particularly in a case when two parties are fighting without disclosing as to who is the aggressor, in the said circumstances also it may be dangerous to accept the plea of right of private defence as a general rule.

Bearing in mind the above said golden principles, this Court has to consider whether there was any right of private defence available to the accused persons. The basic plea of the accused as argued before us by the learned counsel is with regard to the property dispute. According to the complainant, they were in possession and enjoyment of the land bearing survey No. 56/1A of Madapura village. But as could be seen from the examination in chief and cross-examination of the witnesses, it clearly goes to show that the deceased Basanagouda also claim that he was in possession and enjoyment of the disputed land. Therefore, it is argued before us that in order to protect their possession, the accused persons perhaps might have went to the land on coming to know that the crop grown by them was being harvested by the deceased Basanagouda and his followers. In that context, there may be some clashes between the parties. Therefore, in order to protect their and person and property, they might have inflicted some injury on the deceased and the injured. Therefore, it will definitely fall under right of private defence of the body and property.

The records produced before the Court in our opinion does not disclose who was actually in possession of the property. Definitely, there was a dispute between the parties. The documents produced before the Court Ex.P53 shows that A3-Ramanagouda filed a suit in OS No. 162/1993 for permanent injunction restraining the deceased Basanagouda from interfering with his possession and enjoyment of the property. In the said suit, the Court has framed several issues with regard to the ownership of the property in survey No. 56/1 of Bylamadapur village, whether vests with A3 or whether he proves his lawful possession over the property and alleged obstruction by the defendant (deceased). Answering the above said issues, the Court has held issue No. 3 that defendant in the said case deceased Basanagouda has claimed the property that he acquired the property by means of an agreement of sale executed by the father of plaintiff (A3) and he has been in possession and enjoyment of the property. The sale agreement was also produced before the court as per Ex.D1 and evidence was also laid by the deceased. The Civil Court after analyzing has held that unless and until the agreement is declared as null and void or created, concocted or fabricated, it cannot be said that the defendant is abstracting the possession over the suit property. Therefore the finding that, plaintiff has not proved the interference over the property and also not proved the possession over the said property, ultimately, the said suit came to be dismissed. Another document which is produced before the Court marked at Ex.P55 also shows that deceased Basanagouda filed a suit against Hanumanthagouda i.e., father of A3-Ramanagouda and another. On the basis of the said agreement of sale deceased Basanagouda claimed for specific performance of the agreement? It appears; the said proceedings have not yet been concluded. RTC extracts shows the possession of Hanumanthagouda, Ramanagouda produced before the trial Court as per Exs.P57 to P60. On the basis of the above said rival documentary evidence also, it is not clear that who was in physical possession and enjoyment of the property as on the date of the incident.

Admittedly, deceased Basanagouda was harvesting the crop on that particular day along with his brothers and coolie workers. It is also proven fact that accused persons particularly the convicted accused persons and others alleged to have went to the said land in the morning and quarreled with deceased Basanagouda came back and again went there with deadly weapons as per the case of the prosecution.

It is also elicited from the evidence of PW21 and PW22 that deceased Basanagouda and his brother Sureshgouda were not armed with any weapons. Though in the course of cross-examination, it is elicited that the coolie workers and Sureshgouda and others were also having the weapons like sickle for the purpose of harvesting the crop. But the overall analysis of the cross-examination of the witnesses, particularly PWs.21 and 22 though the coolie workers who were working in the said land were having sickles in their hand for the purpose of harvesting the it is not elicited that any of them have made any attempts to assault the accused. It is also elicited in the evidence of these two witnesses that on the particular day, the coolie workers were threatened by the accused persons and they all ran away from the spot. This may also be the reason that the said coolie workers had no opportunity to see what happened. Therefore, they cannot be termed as eye-witnesses. But the fact remains that those coolie workers ran away from the spot and the other persons remained were the deceased Basanagouda and the injured Sureshgouda. It is also there in the evidence that the accused persons were holding different types of weapons like iron rods, club, choppers, etc., in their hands which cannot at stretch of imagination said they went to the land to harvest the crop, and such weapons can be used for harvesting the crop. They actually and voluntarily went to the land and started quarreling with deceased Basanagouda. There is no evidence in the course of cross-examination, by way of suggestion that in the incident, the deceased Basanagouda or the injured Sureshgouda had made any attempt to cause any hurt or there was any apprehension of danger to the lives of the accused persons. Therefore, the accused in order to protect their body and property, inflicted injuries on the deceased and the injured. There is also no semblance of evidence in the course of cross-examination that any one of the accused has sustained even a simple injury, much any grievous injury in order to come to the conclusion that there was apprehension of death or grievous injury to the accused persons at the hands of the deceased or the injured person. In order to exercise any right of private defence.

Particularly Section 103 of IPC emphasizes that the right of private defence of body or property extends to the voluntarily causing of death or injury to the wrong doer only if the offence or attempt occasions, to exercise the right to prevent an offence of any description narrated in the said provision. Otherwise, if the offence does not fall under the description there cannot be any private defence of the body or property, the descriptions are the Robbery, House breaking, and mischief by fire, theft or trespass. In the circumstances, preponderance of probabilities, the accused person shall show that there was a trespass by deceased Basanagouda or his followers, such trespass created reasonable apprehension in the mind of the accused persons that death or grievous hurt will be the consequence. Here the comparative study of the attitude of both the parties clearly discloses that one group was unarmed and accused group was armed with weapons and they actually choose to go to the land where the deceased was already harvesting the crop. Therefore, there cannot be any indication that there was apprehension of danger to the property or to the person of the accused persons. Even the right of private defence of property will not be available to the persons where they can take the recourse of law for the purpose of protecting their property. Admittedly, there are civil proceedings still pending between the parties with regard to the possession of the property and also with reference to the agreement of sale. Though no material has placed before the Court whether, the accused persons have made any attempts to take any order of injunction from the Court to protect their possession. On the other hand, the injunction suit filed by A3 has already been dismissed by the Court. Therefore, looking from any angle, it cannot be said that accused persons even by means of preponderance of probabilities established that they had any right of private defence over the body or the property. Therefore, such plea raised before this Court, in our opinion, is groundless and baseless and on that ground, accused are not entitled for any relief

On the other hand, when once the right of private defence of body or property is taken by the accused persons, it goes without saying that they have to admit the incident. Even otherwise as we have at length discussed in the evidence of PWs.21 and 22, and other witnesses, there are some suggestions to show the presence of these two witnesses at the time of the incident particularly as I have said, the sequence of events that have been taken place immediately after the incident Police going to the spot sending the injured to the Hospital immediately in the Hospital lodging of the complaint and thereafter recording of the inquest proceedings and Post Mortem examination etc., clearly indicates that though there is some discrepancy with regard to the timings and conversation between the deceased and the accused persons, in our opinion, overall the core of the prosecution has been proved to the satisfaction of the Court. On the other hand, there is some semblance of material to show that accused persons have also admitted the incident but they claim right of private defence of body and property before this Court, which is not available to them.

In the above said circumstances, we do not find any strong reasons to come to any conclusion other than the one reached by the Trial Court.

The Trial Court in fact has analyzed the evidence of PWs.21 and 22 in detail. In fact, though PW1 has stated the overt acts of some of the accused persons, but the same has not been stated by PW2. Considering the discrepancy in the evidence between the evidence of PWs.21 and 22, the consistency between the evidence of those witnesses supported by other evidence have been taken into consideration by the Trial Court in convicting only some of the accused persons and acquit the other accused persons who are not responsible in any manner to the death of the deceased or the injuries sustained by the injured Sureshgouda. Such analysis by the trial court is proper and acceptable.

Though it is true that two sets of eye-witnesses are present, when one set turned hostile and another set are interested or close relatives of the deceased, nevertheless, merely because the witnesses are related, their evidence cannot be easily brushed aside when the core of the prosecution case is not totally uprooted or disturbed.

Though there is some discrepancy with regard to the timings stated by the witnesses that some of the witnesses stated that the incident took place at 10.30 a.m., whereas some others have stated that the incident took place at 12.30 in the noon. It is seen that in the statement of PW22 earlier who was almost on the death bed. The Tahsildar has recorded his statement as per Ex.P36 anticipating that PW22 may die; his statement would have been treated as dying declaration if he were to be dead. In that statement he has stated that the time of incident as 10.30 a.m., and he has stated about the presence of five persons as his assailants in the dying declaration, whereas the prosecution story that 20 persons came and made galata. In the evidence, he has stated about the presence of six persons, particularly, who assaulted him and also the deceased and he sustaining injuries. Though there are certain discrepancies in describing the incident in Ex.P36 and when the complainant PW21 and in the evidence, the presence of the accused persons who have actually assaulted the deceased and the injured is not totally disturbed even in the complaint Ex.P21 and in Ex.P36 and as well as in the evidence, and those facts are also supported by some of the eye-witnesses who have specifically mentioned the names of the accused persons who have assaulted the deceased and the injured. Therefore, the Court has to see the overall circumstances whether the prosecution has proved the case beyond reasonable doubt. Even admitting some contradictions and omissions are there in the evidence of the prosecution with regard to the timings and with regard to the use of the weapons and with regard to the presence of the large number of accused persons at the particular point of time. Further, added to that, the recovery of some of the articles which are marked as MOs.22 to 30 alleged to be the clothes of the accused persons have also been not proved before the Court that was also raised as one of the strong circumstance to show the interested-ness of the Investigating Officer. That has also been properly appreciated by the Trial Court by saying that even excluding any recovery at the instance of the accused person, nevertheless the sequence of events have taken place and the nature of cross-examination defence taken up by the accused with regard to their presence admitting the presence of the injured and the deceased and also PWs.21 and 22. Ultimately, it was held that the prosecution has proved the case beyond all reasonable doubt. In our opinion, the Trial Court has considered the evidence of PW1 who implicated some more accused persons as assailants of the deceased, but PW22 who is actually present, who sustained injuries and he was very close to the deceased at the time of the incident has specifically stated about the overt acts of accused persons who are convicted by the Trial Court and excluded some of the accused persons from their participation and overt act. The said appreciation of evidence is proper and correct. Though there is some discrepancy in this regard, the Trial Court has rightly given benefit of such doubt in favour of those accused persons who were acquitted by the Trial Court. Therefore, the impartiality on the part of the Trial Court and as well as meticulously consideration of the evidence on record in order to separate the grain from the chuff and also to give proper justice to the parties, the Trial Court has rightly convicted only some of the accused out of alleged 20 accused, in our opinion does not call for any interference in any manner.

We should bear in mind in appreciating the evidence in criminal cases criminal courts should not expect a set of reaction from the witnesses under a set of circumstances. If five persons expected to explain a same incident there could be five different types of reactions and explanations from each of them. It is neither a tutored impact nor a structured reaction which the witnesses can make. It is fallacious to suggest that witnesses would have done this or that under the circumstances, unless the explanation or reaction on the part of the witnesses is so improbable or so inconceivable from any human being pitted with such situation, there fore the court has accept the overall proof given by the prosecution, whether the case is proved beyond reasonable doubt, ignoring minor and discrepancies.

The complainant has also filed Criminal appeal before this Court, calling upon this Court to enhance the sentence of the accused persons who are convicted for the offence punishable under Section 307 of IPC, but there is no material placed before the Court as to how and why the Trial Court has committed any mistake in awarding such sentence against those persons who have committed the offence u/s. 307 of IPC as stated in the preamble of this judgment.

Looking to the injuries sustained by the witness PW22 and also subsequent treatment taken by him, considering the evidence of the doctor as we have already narrated above, it clearly shows that at the initial stages PW20 sustained some grievous injuries to his head and other parts of the body, nevertheless, he has taken treatment immediately and he was out of danger. Even during the course of evidence before the Court, he has not stated anything about the impact of those injuries on his future life and also not stated whether he is still suffering from any defect or deformity or any apprehension of danger to his life or limbs. In the absence of such material before the Court, considering the seriousness of the offence and the nature of the injuries being inflicted upon him, nature of treatment taken and considering the medical report, we are of the opinion that the Trial Court has rightly sentenced the said accused persons who are convicted for the offence punishable under Section 307 of IPC and there is absolutely no reason to interfere with the judgment of the Trial Court in this regard for enhancing the sentence.

Last, but not the least, as we have stated that the complainant Ramanagouda has preferred separate appeal requesting this Court to convict the other accused person also who were acquitted by the Court below. It is seen from the records that the said Ramanagouda was examined as PW21. We have meticulously in detail dealt with the examination-in-chief of this witness. Even at the cost of repetition if we say that he has only implicated some of the accused persons, i.e., to say A3-Ramanagouda, A6- Shivalmganagouda, A7-Shankaragouda, A8-Veeranagouda, A15-Fakeerareddy, A16-Ningareddy and he also implicated the assailants of his brother Sureshgouda i.e., to say A1- Shivanagouda, A6-Shivalinganagouda, A8-Veeranagouda, A12-Mallikarjungouda, A13-Erappa Fakeerappa Savoora, A15-Fakeerareddy, A20-Hanumanthappa Neelappa Undi, A18-Sripadagouda and A19-Lakshmana have instigated the other accused persons, but what is the nature of instigation nothing has been elicited in the examination in chief itself Though PW21 and PW22 have stated about 20 persons came in a group in two tractors near the disputed land in order to do away with the life of deceased Basanagouda and Sureshgouda. Except stating or implicating the above said accused persons, no other persons overt acts and what is their role, where they were present, whether near the scene of offence or they are silent spectators, nothing has been elicited either in the examination in chief or in the course of cross-examination. PW22 in fact has not even fully corroborated the evidence of PW21 as we have stated that PW22 is the injured who was at the scene of offence, very close to his deceased brother Basanagouda, he had opportunity to see, who actually assaulted deceased Basanagouda, with what weapon and on which part of the body of the deceased Basanagouda. The evidence of PW22 further disclose that after assaulting deceased Basanagouda when he went there to rescue his brother, some of the accused persons have assaulted him also. Therefore it is not the assault at the same time on the deceased and Sureshgouda, but it was one after another. Therefore, in our opinion, when PW1 and PW2 themselves have not stated about the participation of other accused person and there is no whisper in the evidence about their overt act and no role has been given to them, in our opinion, the Trial Court has rightly considered these aspects in convicting only the persons against whom the overt acts have been alleged and the persons who have actually assaulted Basanagouda and the injured Sureshgouda with deadly weapons. Therefore, we do not find any strong reasons to interfere with the judgment of the Trial Court and also with reference to the sentence passed by the Trial Court.

In fact, the learned counsel argued that some of the accused persons have not selected the vital part of the body of deceased Basanagouda and also the injured Sureshgouda. Some of the accused only assaulted on the vital part of the body of the deceased and the Sureshgouda. Therefore, all the accused (convicted) persons cannot be convicted for the offence punishable under Section 302 and 307 of IPC. In this regard, though it is alleged that 20 accused persons went there, but only some of the accused persons who appears to have been holding deadly weapons in their hands particularly, the accused persons who have assaulted deceased Basanagouda and Sureshgouda. Therefore, with what intention they came to that particular spot, even prior coming to the spot holding deadly weapons in their hand, in fact one person is assaulting on the vital part of the body of the deceased and the injured, the other persons assaulted on other parts of the body and head, it shows that their intention to cause so much of injuries, so that the cumulative effect of those injuries are sufficient to cause the death of that person. If with that intention or knowledge if they commit such an offence, in our opinion, merely because some accused persons have assaulted on the vital part of the body itself is not sufficient to exonerate the other accused persons or reduce the punishment imposed upon them. Looking from any angle, we absolutely find no mistake committed by the Trial Court in convicting and sentencing the accused persons accordingly.

The complainant has also not made out any ground in his Criminal Appeal No. 2831/2012 so as to come to any conclusion in order to convict the other accused persons and also sentencing them. Therefore, all the appeals do not merit for consideration and they are liable to be dismissed.

Accordingly, all the appeals are dismissed.