Haalesh @ Haleshi vs State Of Karnataka

HAALESH @ HALESHI @ KURUBARA HALESHI …APPELLANT(S)

VERSUS

STATE OF KARNATAKA …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 1955 OF 2012 and CRIMINAL APPEAL NO. 1303 OF 2014

JUDGMENT

PANKAJ MITHAL, J.

1. Learned counsel for the parties were heard.

2. In Sessions Case No. 25 of 2000 out of the nine accused, seven

accused persons (A-1 to A-7) were convicted for various offences

and were sentenced to undergo imprisonment for different

Page 1 of 14 period with a maximum of life imprisonment for an offence

under Section 302 in aid with Section 149 IPC and remaining

two accused persons i.e. (A-8 and A-9) were acquitted.

3. Accused Nos. 1, 2 and 3 accepted the judgment of the Trial

Court and did not file any appeal against it. Accused Nos. 4, 5

and 6 together filed a Criminal Appeal No. 219 of 2007 before

the High Court whereas accused No. 7 filed a separate Criminal

Appeal No. 229 of 2007. The High Court by a common judgment

passed in both the appeals upheld the conviction and sentence

awarded to all of them i.e. A-4, A-5, A-6 and A-7 and dismissed

the appeals.

4. It is against the aforesaid conviction and sentence that the

accused A-7 has preferred Criminal Appeal No. 1954 of 2012

before this Court. Accused Nos. A-4 and A-5 together have

preferred Criminal Appeal No. 1955 of 2012 whereas accused

No. A-6 has preferred Criminal Appeal No. 1303 of 2014. All

three appeals were clubbed and heard together. They are being

disposed of by this common judgment.

Page 2 of 14

5. Brief facts giving rise to the above trial are that: that there was

a bitter dispute between the deceased Shivanna and his real

brother Ramanna (A-9) with regard to property in connection to

which there was a civil suit between the parties which was

decreed in favour of the deceased and the decree was under

execution.

6. It is alleged that all the accused persons on 25.09.1999 at

around 9:15 am unlawfully assembled in front of the house of

deceased with the common object to kill the deceased Shivanna

and his family members. All of them armed with deadly weapons

mainly choppers thereafter trespassed into the house of

deceased Shivanna. Accused A-1 to A-3 caught hold of deceased

Shivanna and assaulted him with choppers; accused A-4 and

A-5 caught hold of his wife Savithramma and assaulted her with

choppers; accused A-6 and A-7 assaulted Girija, the daughter

of deceased Shivanna with choppers and whereas accused A-8

and A-9 stood at the door of the house keeping a watch and

instigating the other accused to kill the deceased Shivanna and

his family members. The deceased Shivanna upon sustaining

Page 3 of 14 injuries died whereas his wife and daughter who had sustained

grievous injuries survived.

7. After the case was committed to the Sessions Court, the

prosecution examined as many as 33 witnesses and produced

Exhibits P-1 to P-63 and M.Os. 1 to 34. The defence got marked

Exhibits D-1 and D-2 but chose not to lead any evidence in

defence. On the basis of the evidence adduced, the Trial Court

convicted A-1 to A-7 and sentenced them to undergo maximum

imprisonment for life with fine. Accused Nos. 8 and 9 who were

not assigned any role of assault and were alleged to be standing

on the door of the house of the deceased were acquitted. The

conviction, as stated earlier, was upheld by the High Court.

8. Now, in these appeals before us we are concerned with the

conviction and sentence of the appellants A-4, A-5, A-6 and

A-7 only.

9. It is not in dispute that the deceased Shivanna had instituted a

civil suit against his brother Ramana (A-9) in the Court of

Additional Munsif, Bhadravathi for partition and separate

possession of his half share in all the properties described in

Page 4 of 14 the plaint and for cancellation of relinquishment deed dated

7.6.1969 alleged to have been executed by him in favour of A-9.

The said suit, on contest by A-9, was decreed vide judgment,

order and decree dated 16.8.1995 (Exhibits P-45 and P-46). The

said judgment and decree was affirmed in a regular appeal (as

per Exhibit P-53) and was also upheld by the High Court in

second appeal. The deceased Shivanna in the year 1999

initiated proceedings for preparation of the final decree wherein

the executing court directed the revenue authorities to effect

partition in terms of Section 54 of CPC. The Revenue Officers

initiated the work of survey and measurement. It was in

annoyance with the above litigation that A-9 and his family

members decided to do away with Shivanna and his family

members for which they took help of their friends A-4, A-5 (who

were known for their antisocial activities and were on Police

record as “rowdies”) and A-7. Thus, there was a clear motive on

the part of the accused especially A-9 to kill the deceased

Shivanna and his family members.

10. It is pertinent to note that A-9, Ramana himself had not

participated in the assault and remained standing on the door Page 5 of 14 of the house of the deceased along with A-8. He was acquitted

along with A-8 by the Trial Court. A-1, A-2, A-3, A-6 and A-8

are the sons of A-9 whereas A-4, A-5 and A-7 are not his family

members but friends whose help was taken by A-9 to kill the

deceased and his family members.

11. The conviction was based primarily upon the ocular evidence of

two injured eyewitnesses PW-3 and PW-4 who were none other

than the wife and daughter of the deceased, present in the

house. The other daughter of the deceased Shivanna, PW-7

(Rukmini) corroborated the evidence of PW-3 and PW-4. The

informant (PW-1) is the son in law (husband of one of the

daughters) of the deceased Shivanna but his evidence is not

very material. Dr. Umadevi, PW-18, who conducted the

postmortem proved the report of the injuries found on the body

of the deceased Shivanna.

12. The first contention of the counsel appearing for the appellants

is that according to the case of the prosecution itself, A-1 to

A-3 alone assaulted the deceased Shivanna and, therefore, the

other accused persons cannot be convicted for an offence under

Page 6 of 14 Section 302 IPC. It is further submitted that the appellants are

not guilty of unlawful assembly and, therefore, Section 149 IPC

could not have been invoked in the present case. The argument

was opposed from the side of the defence on the ground that all

the accused persons have unlawfully assembled with clear

intention to eliminate the entire family of the deceased

Shivanna. Therefore, even if any of them had not been assigned

the specific role of assaulting the deceased Shivanna, they all

would be guilty for an offence of murder and are liable to be

convicted for life imprisonment.

13. It is true that according to the prosecution and the evidence on

record only A-1 to A-3 had caught hold of the deceased

Shivanna and had assaulted him with choppers. No other

accused person is alleged to have assaulted him, though, some

of them had caught hold of the wife and daughter of the

deceased and had assaulted them with choppers causing

grievous injuries. Nonetheless, the evidence on record clearly

proves that all the accused persons have initially assembled in

front of the house of the deceased Shivanna; first two of them

arrived and later the rest of them came in auto rikshaw. They Page 7 of 14 armed themselves with weapons especially choppers and

thereafter trespassed into the house of the deceased Shivanna.

They all indulged in assaulting one or the other members of his

family with the weapons in their hand except for A-8 and A-9

who remained standing at the door of the house.

14. PW-3, the wife of the deceased Shivanna who herself was

grievously injured in the incident has categorically stated that

there was a bitter feud between her husband and his elder

brother (A-9) with regard to the family property as there was no

partition and her husband had initiated proceedings in civil

court for its partition. She is the second wife of the deceased

Shivanna and that she was living with her husband and one of

the daughters, Girija, who was unmarried, together in the house

where the incident took place. The day before the incident i.e.

on 24.09.1999 at about 10 p.m., A-6 had come and declared

that each one of us would be chopped off and left after extending

the said threat. The whole family was so afraid that on the said

night they took shelter in the house of their son in law

Chandrashekhar (PW-1). She and her daughter, Girija, returned

to their house next day at about 6 a.m. and her husband came Page 8 of 14 back around 7.30 a.m. It is stated that thereafter they had

breakfast when at about 8.30 a.m., A-8 and A-9 came and stood

nearby to their house. In the meantime, A-1 to A-7 came in an

autorikshaw. One of them, A-2 was armed with chopper. The

others went to the nearby tailoring shop and from behind the

board of the shop took out weapons i.e. choppers to arm

themselves. They all entered their house with the said weapons.

A-1 to A-3 caught hold of the deceased Shivanna and assaulted

him with choppers. A-4 and A-5 caught hold of her, assaulted

her and dragged her. Similarly, A-6 and A-7 assaulted her

daughter, Girija, with choppers and then dragged her.

15. The daughter of the deceased (PW-4) who was present in the

house and was also injured, in her statement repeated the same

story and apparently there is no contradiction between the

statements of PW-3 and PW-4.

16. PW-3 and PW-4 are the eyewitnesses who were present at the

scene of incident and were grievously injured. On being

assaulted, they became unconscious and gained consciousness

only on reaching hospital. Their testimony in the background of

Page 9 of 14 the case is the best evidence. No doubt, they are members of the

family and may be interested persons but their testimony

cannot be discarded simply for the reason that they are family

members in the scenario of the case that the incident took place

inside the house of the deceased Shivanna, where there could

not have been any other eyewitnesses other than the family

members. The evidence of the aforesaid two eyewitnesses could

not be shaken in the cross-examination. Thus, we do not find

any illegality on part of the courts below in holding the

appellants guilty and to convict them.

17. There is a clear evidence of PW-3 and PW-4 that, in the first

instance, a day earlier, a threat was extended to them and then

in a planned manner on the next morning initially A-8 and A-9

had come and stood near their house. Thereafter, the other

accused came in an autorikshaw and after alighting from it

collected weapons from behind the board of a tailor shop and

assembled in front of their house. They together armed with

weapons (choppers), entered their house and A-8 and A-9 stood

on the door of the house instigating others to kill. This evidence

is sufficient in itself to establish that they had assembled in Page 10 of 14 front of the house of the deceased Shivanna sharing a common

intention of doing an unlawful act of eliminating the family of

the deceased Shivanna.

18. In the light of the above evidence and in the absence of any

defence evidence, it is amply clear that all the accused persons

unlawfully assembled in front of the house of the deceased

Shivanna and armed themselves with deadly weapons

attracting the provisions of Section 149 IPC.

19. Section 149 IPC reads as under:

“149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”

20. A plain reading of the above provision abundantly makes clear

that an overt act of some of the accused persons of an unlawful

assembly with the common object to kill the deceased Shivanna

and to cause grievous hurt to the other family members is

Page 11 of 14 enough to rope in all of them for an offence under Section 302

IPC in aid with Section 149 IPC.

21. The second contention advanced on behalf of the appellants

that the medical evidence or the medical report on record does

not substantiate the stand taken by the prosecution has no

merit at all for the simple reason that the doctor (PW-18) who

conducted the postmortem had proved the injuries. However,

she suggested the possibility of use of different weapons in

causing those injuries. Undoubtedly, only one kind of weapon

i.e. chopper was used in committing the crime and, therefore,

the evidence of the doctor may not be matching with that of the

prosecution, but again, the ocular evidence of PW-3 and PW-4

is sufficient enough to prove that only chopper was used as a

weapon of crime. In the light of the said evidence of the two

eyewitnesses, the suggestion or opinion of the doctor cannot

prevail as the opinion based upon probability is a weak evidence

in comparison to the ocular evidence of eyewitnesses. Moreover,

even the said doctor herself in the end had suggested that all

the wounds could have been caused by the same kind of

weapons. Therefore, this submission also lacks merit. Page 12 of 14

22. It goes without saying that this Court in exercise of its appellate

jurisdiction is always slow in interfering with the concurrent

findings of the courts below recorded on the basis of the

evidence until and unless such findings are shown to be

perverse. In the case at hand, no perversity of any kind has been

pointed out in the findings returned by the two courts below.

We are ourself satisfied upon consideration of the entire

material evidence on record that none of the findings are in any

manner perverse, thus, leaving no scope for this Court to

disturb the findings or the judgments and orders of the courts

below.

23. In view of the aforesaid facts and circumstances, we do not find

any error or illegality in the judgments and orders of the two

courts below.

24. Accordingly, all three appeals are dismissed as without

substance.

Page 13 of 14

25. The appellants are on bail, their bail bonds are cancelled and

they are directed to surrender forthwith to serve the remaining

sentence.

……………………………….. J.

(ABHAY S. OKA)

……………………………….. J.

(PANKAJ MITHAL)

NEW DELHI;

FEBRUARY 2, 2024.

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