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0a40e3caa6344d0f90be2a56aab93384

4. For the purpose of convenience and better understanding, respondents Nos.1 to 9 in Crl. RC No.11/2009 and appellants in Criminal Appeal Nos.2516/2009, 2535/2009 and 2536/2009 are hereinafter referred to as `Accused Nos.1 to 15' as arraigned before the trial Court.

0NONE

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5. Brief facts of the case leading to registering of the Reference Case under Section 366 of Cr. P C, may be stated as under:

11FAC

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By the impugned judgment dated 16.12.2008, learned Sessions Judge convicted all the 15 accused persons for the offences punishable under Sections 143, 147, 148, 307, 302, 506, 504 read with section 149/114 of IPC.

11FAC

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After hearing the accused on the point of sentence, Learned Sessions Judge has passed further judgment awarding death sentence as against accused Nos.1 to 9, for the offence punishable under Section 302 r/w Section 149 of IPC, on four counts.

11FAC

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As required under sub-section (1) of Section 366 of Cr.PC, learned trial Judge has submitted the records for confirmation of Death sentence.

11FAC

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6. Brief facts of the case leading to the filing of other three Appeals by the accused Nos.1 to 15 under Section 374(2) of Cr.P C may be stated as under:

11FAC

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The complainant-Suresh Siddappa Wodeyar (PW-1) and his family members are permanent residents of Murkibhavi village in Bailhongal Taluk.

11FAC

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The complainant's father has 7 brothers and all of them were residing together in the same place.

11FAC

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Ulavappa (husband of P.W-3) is the elder brother of the complainant.

11FAC

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It is stated that one and half years prior to 30.8.2005 ( i.e., the date of incident), when Kasturi-P.W3, had gone to Kumbarbhavi to fetch water, accused No.3/Sidlingappa and accused No.1/Sundresh picked up quarrel with her and poured water on her; she informed about the incident to her family members; they questioned the accused No.1/Sundresh and accused No.7/Chandranaik and their family members.

11FAC

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For which, the accused quarreled with the complainant and his family members.

11FAC

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It is also alleged that accused No.1/Sundresh and accused No.3/Sidlingappa were often teasing P.W.3 and blocking her way whenever she went to lands.

11FAC

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It is alleged that accused No.10/Mallawwa (wife of accused No.7/Chandranaik) used to taunt and challenge the complainant's family members and threatened with dire consequences if they lodged a complaint with Police.

11FAC

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Further case of the prosecution is that on 29.8.2005 (Monday), at about 8.00 a m, when the complainant was washing his bullocks, Accused No.10/Mallawwa and Accused No.2/Siddappa, who were standing on the upstairs of their house, picked up quarrel with the complainant-P.W.1 and threw chappal at him.

11FAC

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He informed about the incident to his family members, for which they told him that a complaint would be lodged on the next day.

11FAC

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On 30.8.2005 (Tuesday) at about 6.30 AM, when the complainant-P.W1 was going to answer nature's call, Accused No.10/Mallawwa instigated the Accused to kill the complainant-P.W.1.

11FAC

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Accordingly, Accused No.1/Sundresh, Accused No.2/Siddappa,

11FAC

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Accused No.3/Sidlingappa, Accused No.4/Kalmesh, Accused No.5/Rajshekhar, Accused No.6/Bhagwant and one Shivappa Chanbasappa Udkeri, Rudrappa Shankrappa Udkeri, Sidlingappa Apanna Konnennawar, Accused No.15/Doddanaik, Accused No.14/Sakranaik, Raju Sidlingappa Konnennawar, Accused No.12/Basavanneppa and Accused No.7/Chandranaik chased the complainant-P.W.1, who raised hue and cry and went inside his house; at that time, the complainant's grand father/Siddlingappa (the deceased) and his deceased uncles Mallappa and Nagappa, who are residents of the same lane, came and complainant's wife-Ratnawwa also came out of the house holding a plastic mug to go for nature's call; she requested the Accused not to do anything to her husband(PW- 1).

11FAC

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But on the other hand Accused No.2 assaulted Ratnawwa with kyota on left side of her chest and left arm.

11FAC

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Seeing the incident, grand father and uncles of the complaint were proceeding towards Police Station to lodge a complaint, but the Accused accosted them and assaulted and also threatened the public with dire consequences, if they intervened in their action.

11FAC

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Thus, the Accused assaulted Siddlingappa, Mallappa and Nagappa (grand father and uncles of the complainant) with koyta, axe, sickle, jambia, stick and stone.

11FAC

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PW-1 lodged a complaint with Nesargi Police Station.

11FAC

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The Police registered a case in Crime No.72/2005 on 30.8.2005 at about 8.15 A.M., for the offences punishable under Sections 143, 147, 148, 302, 109 and 506 r/w section 149 of IPC.

11FAC

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During the course of investigation, panchanamas were conducted.

11FAC

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Accused were arrested and recorded their voluntary statement and seized the incriminating articles.

11FAC

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After the investigation was over, charge sheet came to be laid against the Accused for the offences punishable under Sections 143, 147, 148, 307, 302, 114, 506 and 504 r/w Section 149 of IPC.

11FAC

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Since the offence under Sections 307 and 302 of IPC are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, where it was registered as SC No.28/2006.

11FAC

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The trial Court, after hearing arguments, framed charges against all the 15 persons for the offences punishable under Sections 143, 147, 148, 302, 307, 114, 506, 504 read with Section 149 of IPC.

11FAC

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Accused have pleaded not guilty and claimed to be tried.

11FAC

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The prosecution went to trial by examining as many as 48 witnesses and got marked 66 documents and 38 Material Objects.

11FAC

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The defence has got marked a portion of complaint- Ext.P-1 as Ext.D1 and D2.

11FAC

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Statement of the Accused under Section 313 of Cr.PC was recorded.

11FAC

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Accused have denied all the incriminating circumstances appearing in the evidence of prosecution witnesses.

11FAC

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They have not adduced any defence evidence.

11FAC

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The trial Court, after hearing arguments, perusing oral and documentary evidence on record, came to a conclusion that the prosecution brought home the guilt to the Accused for the offences punishable under Sections 143, 147, 148, 302, 307, 114, 506, 504 read with section 149 of IPC.

10RLC

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After hearing the accused, on the point of sentence, held that the case falls within the scope of `rarest of the rare case' and awarded death sentence to Accused Nos.1 to 9 for the offence under Section 302 of IPC, on four counts.

10RLC

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Further, Accused Nos.1 to 15 were sentenced to undergo- (i) imprisonment for 3 months and pay fine of `5,000/- each, in default in payment of fine, to undergo imprisonment for 2 months for the offence under Section 143 of IPC; (ii) imprisonment for 6 months and pay fine of `5,000/- each, in default in payment of fine, to undergo imprisonment for 3 months for the offence under Section 147 of IPC; (iii) imprisonment for 9 months and pay fine of `6,000/- each, in default in payment of fine to undergo imprisonment for 4 months for the offence under Section 148 of IPC; and (iv) imprisonment for a period of 10 years and pay fine of `10,000/- each, in default in payment of fine, to undergo imprisonment for 2 years for the offence under Section 307 of IPC (i.e., attempt to commit murder of P.W1-Suresh and P.W5- Maruthi; Further, Accused Nos.10 to 15 were sentenced to undergo - (a) imprisonment for life and pay fine of `10,000/- each, in default in payment of fine to undergo imprisonment for 3 years for the offence under Section 114 of IPC; (b) Imprisonment for 2 years for the offence punishable under Section 506 of IPC; and (c) to pay fine of `1,000/- each, in default in payment of fine, imprisonment for 2 months for the offence punishable under Section 504 of IPC.

10RLC

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The trial court has ordered that the substantive sentences shall run one after another.

10RLC

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This is impugned in these Appeals.

11FAC

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7. Sri V M Banakar, learned Addl. SPP appearing for the state, submitted that since four persons were brutally murdered with deadly weapons, the trial Court has rightly classified the case as "rarest of rare cases" and awarded death sentence as against Accused Nos.1 to 9 and the same may be confirmed.

7ARG_RESPONDENT

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He also submitted that the trial Court, on proper appreciation of oral and documentary evidence placed on record, rightly reached the conclusion that the prosecution has proved the guilt to the accused for the charges levelled against them and awarded adequate sentence for the offences and there is no merit in the Appeals filed by the Accused and the impugned judgment of conviction and sentence.

7ARG_RESPONDENT

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He has cited a decision reported in (2010) 1 SCC (CRI) 925 (DILIP PREMNARAYAN TIWARI AND ANOTHER Vs. STATE OF MAHARASHTRA) on the point of appreciation of evidence in so for as the discrepancies/omissions in FIR.

7ARG_RESPONDENT

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8. Sri R B Naik, learned Senior Counsel appearing for Sri Basavaraj, for Accused Nos.1, 4 to 6,8,9,11,12 and 13, submitted that the trial Court erred in convicting the Accused solely on the basis of interested testimony of the witnesses, though all independent eye witnesses have turned hostile to prosecution.

8ARG_PETITIONER

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He further submits that though, the alleged eye witnesses, have not witnessed the incident, the trial Court erred in accepting their evidence as gospel truth to base conviction for the offences alleged against the accused.

8ARG_PETITIONER

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He further submitted that the case on hand cannot be treated as a `rarest of rare cases' to award death sentence.

8ARG_PETITIONER

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He prayed that the impugned judgment of conviction and sentence awarded against the Accused may be set aside and the all the accused may acquitted of the offences alleged them.

8ARG_PETITIONER

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He has cited the following decisions: (i) AIR 1958 SC 935 (PURANMAL AGARWALLA Vs. STATE OF ORISSA) on the point that the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences; (ii) (1988) 4 SCC 183 (MOHD. AKHTAR HUSSAIN ALIAS IBRAHIM AHMED BHATTI Vs. ASSISTANT COLLECTOR OF CUSTOMS(PREVENTION), AHMEDABAD AND ANOTHER) on the point that the Courts must take into consideration the usual factors while imposing sentences; and (iii) (2010) 1 SCC 573 (RAMRAJ ALIAS NANHOO ALIAS BIHNU Vs. STATE OF CHHATTISGARH) on the point that imprisonment for life sentence was substituted for death sentence.

8ARG_PETITIONER

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9. Sri Masali, learned Counsel appearing for Accused Nos.2,3 and 7, 10,14 and 15, adopted the arguments of the learned Senior Counsel, Sri Ravi B Naik.

8ARG_PETITIONER

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He relied upon the following decisions: (i) 2003(7) SCC 141 (RAM PAL Vs. STATE OF U.P.) on the point that in the case of multiple murder, death sentence was altered to imprisonment for life. (ii) 2011(10) SCC 389 (SHAM Vs. STATE OF MAHARASHTRA on the point that death sentence was commuted to life imprisonment; (iii) 2011(13) SCC 706 (RAJESH KUMAR Vs. STATE) on the point of mitigating circumstances relating to death penalty; (iv) 2012(4) SCC 289 (BRAJENDER SINGH Vs. STATE OF M.P) on the point of mental imbalance of the Accused at the time of committing crime and gravity of mitigating circumstances while awarding death sentence. 10.

8ARG_PETITIONER

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In the light of the arguments addressed by the learned Counsels for the parties, we formulate the following points for our consideration: (i)

9ISSUE

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Whether

9ISSUE

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the trial Court is justified in convicting Accused Nos.1 to 15 for the offences punishable under Sections 114, 143, 147, 148, 307, 302, 506 and 504 r/w 149 of I P C ?

9ISSUE

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(ii) Whether the trial Court is justified in awarding death sentence as against accused Nos.1 to 9 for the offence punishable under Section 302 r/w Section 149 of IPC?

9ISSUE

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(iii) Whether the impugned order of sentence passed as against accused Nos.1 to 9 for the offences punishable under Sections 114, 143, 147, 148, 307, 504, 506 r/w Section 149 of IPC calls for interference by this Court ?

9ISSUE

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(iv) Whether the impugned order of sentence passed as against accused Nos.10 to 15 for the offences punishable under Sections 114, 143, 147, 148, 307, 302, 506 and 504 r/w149 of IPC calls for interference by this Court ? (v)What order?

9ISSUE

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11. For the purpose of convenience and better understanding, we proceed to take up points (i) to (iv) together for consideration. 12.

6ANALYSIS

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At the very outset, it must be mentioned that the alleged independent eye witnesses - P.Ws.6 to 15, 20 to 24 have not supported the case of prosecution.

6ANALYSIS

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Mahazar Witnesses namely PW-16 /Subhash Honnanaik Patil, P.W- 17/Laxman Gangappa Naik, P.W18/Mallesh Basavanneppa Karennavar, P.W19/Nagappa Adeveppa Patteda, P.W27/Mallanaik Sanganaik Baganavar and P.W31/Honappa Yallappa Sattennavar also did not support the case of prosecution.

6ANALYSIS

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P.W30 inquest mahazar witness has partly turned hostile to prosecution.

6ANALYSIS

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The witnesses, who have supported the case of prosecution, can be described as under: (i) P.W.1the Complainant and P.Ws.2 to 5 and 32 are eye witnesses; (ii) P.Ws.25 and 26 are the inquest mahazar witnesses with regard to the deceased-Ratnavva; (iii) P.W.28 is the inquest mahazar witness with regard to the deceased- Siddlingappa;

6ANALYSIS

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(iv) P.W29/Pundalik Bhimappa Wadeyar is the inquest mahazar witness with regard to the deceased Nagappa; (v) P.W33-Raju Nesargi is a seizure mahazar witness regarding seizure of motor cycle at the instance of Accused No.2 and Accused No.6; regarding seizure of an axe at the instance of Accused No.6 and two longs at the instance of Accused No2 (vi) P.Ws-13,38, P.Ws.40,41,45 and 48, are Police personnel who assisted the investing officers during investigation; (vii) 24 (viii) P.W-39/Ganapati is the PSI, who (ix) registered the case in Crime (x) No.72/2005 of Nesargi Police Station and submitted FIR (Ex.P40); P.W-44/Sharanappa and P.W47/Sonia Narang are the Investigating Officers; P.W-42/Dr. Pushpa H R-lady Medical Officer, who conducted autopsy over the deceased Ratnavva; and P.W.43/Dr.M.S.Hottigimatt is the Medical Officer who conducted autopsy over three the deceased persons namely, Siddalingappa, Nagappa and Mallappa. 13.

6ANALYSIS

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The bone of contention of the defence is that as all the independent eye witnesses have not supported the case of prosecution, the trial Court erred in convicting the accused for the alleged offences solely on the basis of interested testimony of the witnesses who are related to deceased and the complainant.

6ANALYSIS

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It is also contended that FIR was registered against 16 persons, but the Investigating Officer, has given up the accused viz., Accused Nos.7/Shivappa Chanabasappa Udakeri, Accused No.10/Raju Siddalingappa Konnanavar and Accused No.13/Siddalingappa Appanna Konnanavar mentioned in the FIR, and filed charge sheet adding three other persons, viz., accused No.9/Shankreppa Chanabasappa Udkeri, Accused No.11/Gowrawwa Nagappa Udkeri and accused No.13/Nagappa Chanabasappa Udkeri.

6ANALYSIS

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It is also contended that in the FIR, there was no allegation against accused No.8/Irappa.

6ANALYSIS

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14. Now, we proceed to state as to relationship of the Accused among them and their age at the time of incident.

6ANALYSIS

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Accused No.7/Chandranaik and his wife-accused No.10/Mallawwa were residing in the house nearby to the complainant.

6ANALYSIS

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Accused No.2/Siddappa and Accused No.3/Sidlingappa are the children of Accused Nos.7 and 10.

6ANALYSIS

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Accused No.14/Sakranaik and Accused No.15/Doddanaik are the younger brothers of Accused No.7.

6ANALYSIS

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Accused No.13/Nagappa is the husband of Accused No.11/Gourawwa.

6ANALYSIS

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Accused No.5/Rajshekhar, Accused No.9/Shankreppa and Accused No.12/Basavaneppa are brothers.

6ANALYSIS

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Accused No.1/Sundresh and Accused No.8/Irappa are the sons of Accused No.12/Basavaneppa.

6ANALYSIS

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Accused No.6/Bhagwant is the son of Accused No.13/Nagappa.

6ANALYSIS

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Accused No.4/Kalmesh is the son of Accused No.9/Shankreppa.

6ANALYSIS

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Accused No.10/Mallawwa is the sister of Accused No.5/Rajshekhar, Accused No.9/Shankreppa, Accused No.12/Basavanneppa and Accused No.13/Nagappa.

6ANALYSIS

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Accused Nos.1 to 9 are aged about 28 years, 26 years, 24 years, 21 years, 38 years, 30 years, 51 years, 18 years and 53 years, respectively.

6ANALYSIS

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15. According to the case of prosecution, Accused No.1/Sundresh, Accused No.2/Siddappa, Accused No.5/Rajshekhar and 11/Gowravva were armed with axe.

6ANALYSIS

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It is pertinent to mention that the weapon 'long' is called as 'kyota' in Kannada.

6ANALYSIS

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27 Accused No.3/Siddlingappa, Accused No.4/Kalmesh and Accused No.7/Chandranaik were armed with 'long'/'koyta.

6ANALYSIS

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The alleged abettors namely Accused Nos.10 to 15 are aged about 44, 45, 56, 52, 57 and 48 years, respectively.

6ANALYSIS

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16. From the evidence of P.Ws.1,2,3,4,5 and 32, Accused No.1/Sundresh assaulted Ratnavva, Mallappa and Nagappa with an axe; Accused No.2 assaulted Ratnavva and Nagappa with a 'long'/koitha; Accused No.3 assaulted Siddlingappa and Mallappa with a 'long/koitha'; Accused No.4 assaulted Siddalingappa on the neck with a koitha/long; Accused No.5 assaulted Mallappa on the shoulder with an axe; Accused No.6 assaulted Nagappa on the head and back with an axe; Accused No.7 assaulted Mallappa on the face with a koyta/long; Accused No.8 assaulted Siddalingappa on the shoulder with an axe and Accused No.9 assaulted Ratnavva with an axe on the left hand and Siddalingappa on the left shoulder. It is in the evidence of the complainant/P.Ws.1, P.Ws.2,3,4,5 and 32 that Accused No.10/Mallawwa (wife of Accused No.7) abetted the commission of offence and also assaulted Siddalingappa on his forehead with a stone.

6ANALYSIS

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Further, A-11 to 15 instigated the accused kill PW.1-Suresh and PW.5-Maruthi.

6ANALYSIS

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Charge sheet reveals that accused named in FIR namely Accused No.7/Shivappa Chanabasappa Udakeri, Accused No.10/Raju Siddalingappa Konnanavar and Accused No.13/Siddalingappa Appanna Konnanavar were given up while adding Accused No.9/Shankreppa Chanabasappa Udkeri, Accused No.11/Gourawwa Nagappa Udkeri and Accused No.13/Nagappa Chanabasappa Udkeri in the charge sheet.

6ANALYSIS

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Accused Nos.9,12 and 13 are brothers.

6ANALYSIS

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All the independent eye witnesses, viz., P.Ws.6 to 15, P.Ws.20 to 24 have not supported the case of prosecution for the reasons best known to them.

6ANALYSIS

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Merely because those witnesses have not deposed in support of the prosecution, case of the prosecution cannot be rejected in toto.

6ANALYSIS

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Therefore,the evidence of P.Ws.1, 2,3,4,5 and 32, who are the eye witnesses cum related to the complainant require to be scrutinized carefully.

6ANALYSIS

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In our view, there is no strong ground to reject their evidence in toto for the following reasons.

6ANALYSIS

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17. P.W1-Suresh, aged about 28 years, is the husband of the deceased-Ratnavva and grand son of the deceased Siddalingappa and nephew of the deceased Nagappa and Mallappa.

6ANALYSIS

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He has deposed in evidence that the deceased Siddalingappa had 8 sons and 2 daughters.

6ANALYSIS

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P.W-1 has deposed that his father-Siddappa died about 14 years back prior to the incident and his senior uncle-Basappa and his father though living in the same house of Siddalingappa, they had separate mess; whereas other 6 sons including the deceased Mallappa and Nagappa were living together with Siddalingappa and they had a common mess.

6ANALYSIS

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P.W2/Bhagawwa N Wadeyar is the sister of P.W1.

6ANALYSIS

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Ulavappa Siddappa Wadeyar is the elder brother of P.W1.

6ANALYSIS

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According to P.W-1, about 1 year prior to the incident, when P.W3/Kasturi (w/o P.W1's elder brother-Ulavappa Siddappa Wadeyar) had been to fetch water, Accused Nos.1 and 3 poured water and pulled her.

6ANALYSIS

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She informed about the incident to her family members including deceased persons; they enquired with the Accused.

6ANALYSIS

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Since then, Accused No.10/Mallawwa used to abuse the family members of the complainant, in vulgar language, whenever they went in front of her house; when P.W3/Kasturi was proceeding towards the land; Accused Nos.1 and 3 teased and abused her in vulgar language and also restrained her from proceeding further. She informed the incident to the family members.

6ANALYSIS

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When they questioned the Accused, there was exchange of words.

6ANALYSIS

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Again on 29.8.2005, at about 8.00 am, when the complainant was washing bullocks in front of his house, Accused No.10/Mallawwa, who was standing on the staircase of her house, teased him and threw slipper at him.

6ANALYSIS

90ffe0c3d4c044dea69dc02e50e2e549

Accused No.10 and Accused No.2 threatened him with dire consequences.

6ANALYSIS

6b0ee43c84224b13923f84bfc3b002e4

Again, on 30.8.2005, at about 7.00 a m, when the complainant was going to attend nature's call, Accused Nos.1 to 9 were armed with long and axes etc., came along with other accused namely Accused Nos.10,11,12,13,14 and 15 and challenged the complainant and his family members and attempted to kill the complainant and his family members.

6ANALYSIS

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It is the case of the prosecution that on 30.8.2005 at about 6.30 a.m., all the Accused started chasing the complainant; he made hue and cry and went in side his house.

6ANALYSIS