Urakunda vs State

Mohan M. Shantana Goudar, J.—This appeal is directed against the judgment and order of conviction dated 11.01.2011 passed by the Fast Track Court-I, Bellary, in S.C. No. 79 of 2009, convicting accused Nos. 1 to 6 for the offences punishable under Sections 143, 148, 302 read with Section 149 of IPC. By the very judgment, accused Nos. 15 and 17 are acquitted.

Totally 21 persons were allegedly involved in the matter on hand as accused. Out of them, accused Nos. 16, 18, 19, 20 and 21 had absconded and consequently, separate trial is going on as of now, after securing their presence. Accused Nos. 7 to 14 were given up and were not sent up for trial. Thus, the trial commenced only against accused Nos. 1 to 6 and accused Nos. 15 and 17 in S.C. No. 79/2009. As aforementioned, accused No. 1 to 6 are convicted for the offences punishable under Sections 143, 148, 302 read with Section 149 of I.P.C.

Though the appeal is filed by six convicted accused, i.e., accused Nos. 1 to 6, it is brought to the notice of the Court by filing a memo by the learned advocate for the appellants that accused No. 1 namely Urakunda son of late Eranna has expired on 01.12.2014. Hence, this appeal filed by him abates. Consequently, the appeal filed by the convicted accused Nos. 2 to 6 is heard.

The case of the prosecution in brief is that the complainant and the victims (deceased) are the party workers of Bharatiya Janata Party, whereas all the accused had identified themselves as Congress party workers; at the instance of accused No. 1 and others, all the accused conspired to do away with the life of the complainant and his brother because of political rivalry. A day prior to the incident i.e., on 22.02.2009, Srinivasa-a friend of complainant, was assaulted; the complainant and others proceeded to the house of the accused to inquire as to the reasons for the assault of Srinivasa; it seems both the parties converged in front of accused No. 1 with a view to compromise the matter; however, all of a sudden, all the accused came inside the house of accused No. 1 with lethal weapons, like chopper, rods, sticks, etc. The woman folk in the house of accused No. 1 threw chilli powder on the face of Nagaraj and Kurihatti Seena (both are deceased) and they were assaulted by all the accused mercilessly. As a result, Nagaraj fell on the ground with bleeding injuries and died, whereas, Kurihatti Seena breathed his last on the way to the hospital. The doctors have opined that Nagaraj died due to hemorrhagic shock as a result of multiple injuries sustained and Kurihatti Seena died due to hemorrhagic shock as a result of head injury sustained.

The complaint came to be lodged, as per Ex. P-1, by PW-1/B. Ramesha, who is an eye-witness to the incident. PW-44 is the Police Inspector of Cowl Baazar Police Station, who registered the complaint (first information) in Crime No. 29/2009 at 7.00 p.m. on 23.02.2009.

As aforementioned, the incident has taken place at about 3.00 p.m. to 4.00 p.m. on 23.02.2009. The police, after investigation, laid charge-sheet on 23.05.2009 for the offence punishable under Section 302 of I.P.C. apart from other offences.

In order to prove its case, the prosecution in all examined 44 witnesses and got marked 48 exhibits and 18 material objects. On behalf of the defence, three witnesses were examined and 15 documents were got marked.

The trial court on evaluation of the material on record convicted accused Nos. 1 to 6 and acquitted accused Nos. 15 and 17.

Sri. Ravi B. Naik, learned senior advocate appearing on behalf of the convicted accused, submits that the judgment of the Court below convicting accused Nos. 1 to 6 is not proper and correct. The material on record, more particularly, the version of the eye-witnesses, reveal that the eye-witnesses along with the deceased came to the spot armed with weapons to quarrel with the accused herein; the prosecution witnesses and the deceased were the aggressors and they started quarreling with the accused; the incident has taken place without any premeditation insofar as the accused are concerned; in order to save their lives, the accused have retorted to the action of the prosecution witnesses and the deceased, and consequent upon which, the two persons have lost their lives. According to him, the offence, at the most, may fall under Section 304 Part II of I.P.C. and not under Section 302 of I.P.C.

Per contra, Sri. V.M. Banakar, learned Addl. SPP, argued in support of the judgment of the Court below contending that the evidence of eye-witnesses--PWs. 1 to 7 is consistent, cogent and reliable; all the eye-witnesses have specified in their deposition that accused Nos. 1 to 6 were the cause for the incident in question. None of the prosecution witnesses as well as the deceased were armed as on the date of incident; they had gone to the house of the accused to have a compromise talk; however, accused No. 1 and his group assaulted both the deceased with lethal weapons. Consequent upon which, both the injured have lost their lives. Hence, according to him, it is a clear case of murder-an offence punishable under Section 302 of I.P.C.

He further draws attention of the Court to the material on record to contend that the accused party also have sustained injuries in this scuffle and in that regard, a counter-complaint is lodged against the prosecution witnesses in this case in Crime No. 30 of 2009 of the very same Police Station. In Crime No. 30 of 2009, accused Nos. 1 and 2 are injured and wound certificates are available on record. Thus, according to him, the incident, scene of offence as well as the complicity of the accused cannot be disputed.

PW. 1 is the brother of the deceased Nagaraj. He lodged the first information as per Ex. P1 before the Cowl Bazar Police Station, Bellary based on which crime is registered.

PWs. 2 to 7 are the eye witnesses to the incident.

PW. 8 is the witness for the incident that occurred on 22.2.2009 i.e., on the previous day of the incident in question. On the previous day, verbal quarrel ensued between the accused and certain of the witnesses with regard to certain money transaction.

PWs. 9 and 10 are the witnesses for the scene of offence panchanama-Ex. P10.

PWs. 11 and 12 are the witnesses for recovery pancnanama-Ex. P11 under which two choppers produced by Accused No. 1 are recovered.

PWs. 13 to 17 are hearsay witnesses inasmuch as they came to know about the incident subsequently on being informed by PW. 1-Ramesh over phone.

PWs. 18 and 19 are the witnesses for the inquest panchanama-Ex. P12 relating to the dead body of Kurihatti Seena.

PWs. 20 to 22 are the hearsay witnesses. Out of them, PW. 20 is the mother of PW. 1; PW. 21 is the wife of deceased Nagaraj and PW. 22 is the wife of deceased Kurihatti Seena.

PWs. 23 to 27 are the eye witnesses to the incident. But, they have turned/hostile to the case of the prosecution.

PW. 28 is the Engineer who prepared the sketch of the scene of offence as per Ex. P18.

PW. 29 is the doctor who conducted the postmortem examination over the dead bodies of both Nagaraj and Kurahatti Seena. Ex. Ps. 19 and 20 are the post-mortem reports; Ex. P21 is the requisition and Ex. P22 to 27 are the letters containing the opinion of the doctor in respect of the weapons used.

PW. 30 is the Head Constable who handed over the dead body to the concerned.

PW. 31 is the witness for recovery panchanama-Ex. P33 under which weapons are recovered from Accused Nos. 3 to 6.

PWs. 32 and 33 are the witnesses who were supposed to witness about the aspect of conspiracy. But, they have turned hostile.

PW. 34 is the witness for inquest panchanama.

PW. 35 is the woman constable who produced Accused Nos. 15 and 17 before the Police Sub-Inspector-PW. 40.

PW. 36 is the Head Constable who handed over the dead body of Nagaraj to his relatives.

PW. 37 is the Police Inspector and he has conducted part of the investigation.

PW. 38 is the Police Constable who carried the FIR-Ex. P37 to the jurisdictional Magistrate.

PW. 39 is the Investigating Officer who completed the investigation and laid the charge sheet by dropping Accused Nos. 7 to 14.

PW. 40 is the Police Sub-Inspector who arrested Accused Nos. 15 and 17.

PWs. 40 and 41 are the panchas for seizure of clothes under Ex. P40 and Ex. P41. They have turned hostile.

PW. 43 is the Head Constable. He escorted Accused Nos. 1 and 2 to Sanjay Gandhi hospital, Bangalore.

PW. 44 is the Sub-Inspector of Police. He received the complaint and registered the crime. He also conducted part of the investigation.

DWs. 1, 2 and 3 are the witnesses who were examined on behalf of the accused. DW. 1 is the Police Sub-Inspector who registered Crime No. 30/2009, which is a counter case. DW. 2 is the Professor of Sanjay Gandhi Hospital, Bangalore. DW. 3 is the Medical Officer of Sanjay Gandhi Hospital, Bangalore; He has deposed about the injuries sustained by Accused Nos. 1 and 2 and Exs. D7 to D15 are marked in his evidence.

We are well aware of the fact that we should not look into and consider the material collected in the counter-case. But in the matter on hand, the prosecution as well as the defence have brought certain material relating to the counter-case in this case as per law. Suggestions relating to counter-case are made to witnesses and the same are admitted by them. Even certain of the documents in the counter-case are got marked as per law in the present mater. Thus we have looked into the materials which are legally brought on record though they are relating to another matter.

PWs. 1 to 7 and PWs. 23 to 27 are the eyewitnesses. Out of them, PWs. 23 to 27 have turned hostile. The entire case of the prosecution mainly rests on the ocular testimony of remaining eyewitnesses i.e., PWs. 1 to 7.

In the matter on hand, it is not disputed by the defence about the incident in question. The place of incident is also not in dispute. The presence of the accused as well as the deceased and the presence of the eye witnesses is not disputed. It is also not disputed that Accused Nos. 1 and 2 in this matter are also injured and in that regard another complaint is also lodged which is registered in Crime No. 30/2009. In the light of such admitted facts, the only question that arises is as to whether the accused are innocent or not and if they are not innocent, for what offence they should be convicted.

PW. 1 is the complainant. He is the brother of the deceased Nagaraj and relative of Kurihatti Seena. PW. 2 has deposed about the motive for commission of the offence as well as about the incident in question. His deposition makes it clear that the deceased as well as the eye-witnesses are workers of Bharatiya Janata Party, whereas the accused are workers of Congress party. The motive as put forth by the prosecution is fully supported by all the eye-witnesses.

The evidence of PW. 2 further discloses that petty quarrel took place on 2.2.2.2009 i.e., on the previous day of the incident in question with regard to money transaction; on the next date i.e., on 23.2.2009, all the eye-witnesses including the deceased went near the house of Accused No. 1-Urukunda to enquire as to why unnecessary quarrel took place on the previous day; at that point of time, Accused No. 1 was talking over mobile phone; on seeing the deceased and the prosecution witnesses, Accused No. 1 called them near the house Accordingly, both the deceased went near the house of Accused No. 1; then the women folk in the house of Accused No. 1 came out with chilli powder in their hands and threw on the faces of both the deceased; immediately Accused No. 1 took out a chopper and assaulted Nagaraj on various parts of his body; Accused No. 2-Narasimhalu took out a long chopper and assaulted the deceased Nagaraj and Kurihatti Seena; Accused No. 3-Thipperudra assaulted Nagaraj with long chopper on his right ear; Accused No. 5-Muniswamy assaulted Kurihatti Seena with long chopper on his right hand; Accused) No. 6-Yerragundi Seena @ Srinivasa took out the chopper and assaulted on the left hand of the deceased Kurihatti Seena;. Thereafter Accused No. 4-Yerriswamy assaulted on the head of Kurihatti Seena with chopper; Certain other accused were pelting stones on the eye witnesses.

Though PW. 2 is subjected to lengthy cross-examination, nothing worth is elicited in his cross-examination so as to discard his evidence. A suggestion is made to PW. 2 by the defence that the deceased as well as other eye-witnesses came to the spot armed with long choppers with a view to take away the life of Accused Nos. 1 and 2. However such circumstances are denied by PW. 2. The evidence of PW. 2 is not shaken in the cross-examination with regard to the incident in question. Even in the cross-examination, he has reiterated about the complicity of Accused Nos. 1 to 6. It is borne out from the evidence of PW. 2 that the deceased Nagaraj died on the spot whereas Kurihatti Seena has died on the way to the hospital.

The evidence of PW. 2 is supported by the evidence of PW. 3. PW. 3 has also deposed almost in the/similar fashion as deposed by PW. 2. He has in detail disclosed the complicity of each of Accused Nos. 1 to 6 and their respective overt acts. In the cross-examination, he has admitted that Accused Nos. 1 and 2 were brought to the hospital when both the deceased were taken to the hospital. The evidence of PW. 3 not only discloses the complicity of Accused Nos. 1 to 6 in causing the death of both the deceased Nagaraj and Kurihatti Seena but also discloses that Accused Nos. 1 and 2 had suffered grievous injuries in the very incident. The evidence of PWs. 2 and 3 is further supported by the evidence of PWs. 4 to 7. All these witnesses have also deposed about complicity of each of Accused Nos. 1 to 6 meticulously. All of them have firmly deposed before the Court that at about 3 to 4 p.m. on 23.2.2009 the incident has taken place in front of the house of Accused No. 1. All these witnesses went to the house of Accused No. 1 to enquire about the previous day incident. Except the suggestion to PWs. 2 to 4 that the deceased as well as the eye witnesses herein were armed with weapons, no other material is brought on record to believe the version of the defence that the deceased were also armed with weapons. The suggestions made by the defence to PWs. 1, 2 and 3 are denied by them.

We find that the evidence of PWs. 2 to 7 is consistent, cogent and reliable. All of them were admittedly present at the scene of offence. Even the case of the defence is that the deceased as well as PWs. 2 to 7 were present at the spot. Their presence is not disputed by the defence. The scene of offence is also not disputed. In this view of the matter, the evidence of PWs. 2 to 7 fully supports the case of the prosecution as found in the complaint Ex. P1. The trial Court, in our considered opinion is justified in believing the versions of PWs. 2 to 7 while coming to the conclusion. Even on re-appreciation of the material on record, we do not find any ground to disagree with the said conclusion reached by the trial Court.

The defence may be justified in arguing that PW. 1 may not be the eye witness to the incident. Though the evidence of PW. 1-Ramesh at the first look discloses that he is the eye witness to the incident in question inasmuch as he is the brother of the deceased Nagaraj, the defence argued that said Ramesh though was cited as the accused in the counter-case is dropped by the Investigating Officer on the ground that he was not present at the spot on the relevant day. Merely because PW. 1 is dropped from the charge sheet after investigation, it cannot be said that he was not the eye witness to the incident. At the most it may be said that he did not participate in the incident in question. Be that as it may, even ignoring the evidence of PW. 1, we have got ample material on record in the form of the evidence of PWs. 2 to 7 whose evidence is reliable and unshaken in the cross-examination. As aforementioned, their presence is not disputed by the defence.

As aforementioned, the consistent, cogent and reliable material in the form of evidence of PWs. 2 to 7 clearly bring home the guilt against Accused Nos. 1 to 6. The ocular testimony of PWs. 2 to 7 is fully supported by the evidence of the doctor-PW. 29 who conducted the post-mortem examination on the dead bodies of Nagaraj and Kurihatti Seena. Ex. P19 and P20 are the post-mortem reports. The evidence of the doctor as well as the post-mortem reports amply disclose that the deceased Nagaraj and Kurihatti Seena have sustained certain incised injuries. It is the case of the prosecution that the accused have used choppers which are sharp cutting weapons for commission of the offence. Therefore the weapons used can cause the incised injuries as found on the dead bodies. Same is the opinion of the doctor. Doctor has opined that the death of both the deceased has taken place due to multiple injuries sustained by them.

In view of the above, we are of the opinion that the prosecution has proved its case beyond all reasonable doubt that Accused Nos. 1 to 6 have committed the crime in question.

Sri Ravi B. Naik, learned senior advocate argued that the accused have exercised right of private defence; since the overt acts of the accused could not be weighed in a golden scale in such matters and as the accused nad to retaliate on the spur of the moment, it is but natural that there may be some excess usage of right of private defence. He relies upon the judgment of the Apex Court in the case of Darshan Singh Vs. State of Punjab and Another, in support of the said submission.

There cannot be any dispute that self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. The right of private defence is recognized within certain reasonable limits. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self creation. 1 A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. The right of private defence commences as soon as a reasonable apprehension arises in the mind and it is coterminous with the duration of such apprehension. So also it is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. However the Apex Court has cautioned repeatedly that in right of private defence, the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

In the matter on hand, though it is suggested by the defence to PWs. 2 to 4 that the deceased as well as the eye witnesses were armed with weapons, such suggestions are denied. Except those suggestions, no other reliable material is found on record to support such suggestion. It is no doubt true that Accused No. 1 had sustained fracture of parieto orbitral bone whereas Accused No. 2 has sustained simple injuries. Accused No. 2 has sustained lacerations and abrasions. If really the deceased as well as the prosecution eye witnesses had taken the sharp cutting weapons such as chopper etc., Accused Nos. 1 and 2 would have sustained incised injuries.

The incident has taken place in front of the house of Accused No. 1. It is no doubt true that the deceased and the eye witnesses had gone to the house of Accused No. 1 to enquire about the previous day incident. That does not mean that Accused No. 1 should apprehend that the eye witnesses as well as the deceased had come to his house for commission of the murder or to commit the grave crime. As is clear from Section 100 of IPC, the right of private defence of body extends, subject to the restrictions mentioned in the previous section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions mentioned therein. If the assault of the other side may reasonably cause the apprehension that the death will otherwise be consequence of such assault or if the accused apprehends that such an assault may reasonably cause grievous hurt etc., the right of private defence can be used. Section 100 of IPC justifies the killing of an assailant when apprehension of atrocious crime enumerated in several clauses of the section is shown to exist. First clause of Section 100 applies to cases where there is reasonable apprehension of death while second clause is attracted where a person has a genuine apprehension that his adversary is going to attack him and he reasonably believes that the attack will result in a grievous hurt. In that event he can go to the extent of causing the latter''s death in the exercise of the right of private defence even though the latter may not have inflicted any blow or injury on him. Thus the law clearly spells out that the right of private defence is available only when there is reasonable apprehension of receiving the injury. In the matter on hand, in the absence of any material to show that the deceased and the eye witnesses came to the spot with arms, there could not have been any apprehension in the mind of any of the accused to commit the ghastly crime of taking away two lives.

It is no doubt true that the prosecution has failed to prove that the women folk living in the house of Accused No. 1 threw the chili powder on the deceased. That does not mean that the entire case of the prosecution should be disbelieved. The grain shall have to be removed from the chaff. On reconsidering the material on record, we find that it is not a case wherein the right of private defence could have been exercised. But it is a clear case of murder of two persons. The material on record does not reveal that the accused have committed the crime by exceeding their right of private defence. Since there was no occasion for the accused to apprehend that their lives would be taken away either by the deceased or by the eye witnesses, the contention of the defence that the accused have exercised the right of private defence cannot be accepted. So also we decline to accept the submission of the learned advocate for the defence that the offence has taken place at the spur of the moment. Even assuming that there is verbal altercation between the deceased and the eye-witnesses on the one side and Accused No. 1 on the other side, there is no reason as to why Accused Nos. 2 to 6 could come from within the house fully armed with chopper for committing the offence of murder. Accused No. 1 also has assaulted the deceased Nagaraj with chopper on his head brutally. Thus it is a clear case of two murders which is punishable under Section 302 of IPC.

Looking to the entire material on record, we are of the clear opinion that the Court below is justified in convicting the appellants for the offence under Section 302 of IPC apart from other offences, with which they were charged. Hence no interference is called for in this appeal.

Appeal fails and the same stands dismissed.