IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD

1

DATED THIS THE 18^TH DAY OF DECEMBER 2009

BEFORE

THE HON'BLE MR. JUSTICE K.SREEDHAR RAO

AND

THE HON' BLE MR. JUSTICE RAVI MALIMATH

Between:

Crl.A.No.2539/2008

• Pampapathi s/o Murudabasappa, Age 32 years, Occ: Agriculture, R/o Ealaganoor, Tq. Gangavathi.
• Sharanappa s/o Murudabasappa Hadimani, Age: 37 years, Occ: Agriculture, R/o Ealaganoor, Tq. Gangavathi.
• Murudabasappa s/o Amarappa Hadimani, Age: 62 years, Occ: Agriculture, R/o Ealaganoor, Tq. Gangavathi.
• Konagi Basangowda s/o Malakajappa Abgal, Age: 62 years, Occ: Agirculture, R/o Ealaganoor, Tq. Gangavathi.
• Kanteppa s/o Giddappa Badagi, Age: 37 years, Occ: Agriculture, R/o Ealaganoor, Tq. Gangavathi.

Murudappa s/o Murudabasappa Hadimani, Age: 47 years, Occ: Agriculture, R/o Ealaganoor, Tq. Gangavathi.

Basappa s/o Ayyappa Hanchi, Age: 52 years, Occ: Agriculture, R/o Ealaganoor, Tq. Gangavathi. (Accused Nos. 1 to 7 before Trial Court now in judicial custody)

And

Appellants

Respondent

The State of Karnataka by Karatagi Police Station, now by S.P.P, Circuit Bench, Dharwad (complainant before trial Court)

(by Sri A.R.Patil, A.S.P.P)

This appeal is filed u/S 374(2) of Cr.P.C. by the appellants praying to set aside the conviction and sentence dated 12.8.2008 passed by the Fast Track Court-I, Koppal in Sessions Case No. 14/2006 and acquit the appellants.

This appeal coming on for final hearing on this day, Sri K. Sreedhar Rao. J, delivered the followign judgment.

Judgment

1. The material facts of the prosecution case disclose that

Appellant No. 1 (A1), Appellant No. 2 (A2) and Appellant No. 3 (A3)

are brothers. Appellant No. 4 (A4), Appellant No. 5 (A5), Appellant No. 6 (A6) and Appellant No. 7 (A7) are friends of A1 to A3.

2. On 21.6.05 at 4.00 p.m. in Ilaganur village of Karatagi Police Station near the hotel of P.W.6 there was a quarrel between A1 to A7 and Nirupadi (deceased) with regard to collection of water from a A3 to A5 grabbled the deceased. A1 assaulted the public tap. deceased with wooden cart peg on the head, other accused assaulted and kicked the deceased. The deceased sustained head injury was in coma, died on 25.06.2005 as a result of head injury. The death is a homicidal. P.W.2-complainant is the brother of deceased, P.W.3 Anjanappa, P.W.4-Sheenappa, P.W.5-Hanumanthappa, P.W.6-Veerashaiah Mathapathi-hotel owner. P.W.7-Siddappa Hanumanthappa Uppara-brother of deceased, P.W.8-Kallappa Hanumanthappa Harijan, P.W.9-Nagappa Ningappa Chalavadi are the eye witnesses to the incident. The accused are charged for committing offences u/S 143, 147, 148, 341, 323, 324, 504, 506(2)

302 r/w Sec. 149 IPC. The charge u/S 143, 147, 341, 504 and 506(2) IPC appears to be redundant and unnecessary.

3. The F.I.R. allegations disclose that on 21.6.05 at about 4 p.m. P.W.2, P.W.7, Nirupadi (deceased) had come to hotel of P.W.1 to take Tea. The accused persons come to the hotel and abused the deceased in filthy language. A3, A4 and A5 hold the deceased and A1 assaulted the deceased with cart peg on the head. The other accused assaulted and kicked the deceased. The complaint is lodged on the same day at 5.00 p.m. The evidence of P.w.2 discloses that A3 came and hold the shift of the deceased, other accused ambushed the deceased and started kicking and beating. A4 to A7 exhorted others to do away the life of the deceased and A1 with cart peg assaulted on the head. Evidence of P.W.3 disclose that accused persons picked up quarrel with the deceased and started kicking. A1 assaulted the deceased with cart peg.

4. The evidence of P.W.4 discloses that A1 assaulted the deceased with cart peg on his head. He does not attribute overt acts to the

other accused. Evidence of P.W.5 discloses that A1 to A7 picked up quarrel with the deceased and that A1 assaulted the deceased with a cart peg on the head. The other accused were pushing and kicking the deceased. P.W.6-hotel owner has turned hostile. Evidence of P.W.7 discloses that A1 assaulted the deceased with cart peg on the head and other accused kicked and assaulted the deceased with hands. Evidence of P.W.8 discloses that A1 assaulted the deceased with the cart peg on his head and he does not speak anything about the overt acts of other accused. Evidence of P.W.9 discloses that A1 to A7 were assaulting the deceased, A3 to A5 held the deceased, A1 assaulted the deceased with the cart peg.

5. Evidence of above witnesses with regard to the overt acts of the accused is inconsistent with one another and as well with the F.I.R. Evidence discloses that when deceased was along with P.W.2 and others the accused came and picked up quarrel and started assaulting.

6. Al was wielding cart peg and dealt blow on the head and caused the death. Merely because the accused used abusive language

of killing during the assault it cannot be inferred that all the accused had an intention and common object to cause murder. The blow of Al alone has caused the death. Other accused had assaulted the deceased bear handed. There is no consistent evidence on the part of all the eye witnesses. That A3 to A5 held the deceased to facilitate the assault by A1 with the cart peg on the deceased.

7. In that view of the matter we find that A1 alone should be held liable for causing death of Nirupadi. The act of assault made by A1 would fit into Category 3 of Sec. 300 IPC. With regard to other accused they would be liable for conviction only u/S 323 IPC. In that view of the matter appeal of A1 is dismissed. Conviction of A2 to A7 u/S 302 IPC is set aside and they are convicted u/S 323 IPC.

8. Conviction of A1 u/s 302 IPC is confirmed. Appeal of A1 is dismissed. Conviction u/s 143, 147, 148, 341, 504 and 506(2) against A1 is set aside.

9. Conviction of A2 to A7 u/s 302 IPC is set aside. A2 to A7 are convicted u/S. 148 & 323 r/w Sec. 149 IPC. The A2 to A7 are sentenced to RI for a period of three months for conviction u/s 148 IPC. For conviction u/S. 323 IPC sentenced to R.I. for a period of six months each and to pay compensation of Rs.30,000/- each. It is stated that A2 to A7 have served the sentence. A2 to A7 to be directed to be released after payment of compensation amount before the Trial Court.

Sri Bahubali Danawade, appointed as Amicus Curiae for respondents 2 to 7 shall be paid fee of Rs. 5,000/-. State shall pay the fine.

Sd/-JUDGE sal-

TUDGE

bvv/-