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In the High Court of Karnataka at Bangalore

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In the High Court of Karnataka at Bangalore 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 17TH DAY OF OCTOBER 2014 PRESENT THE HON’BLE MR.JUSTICE N.ANANDA AND THE HON’BLE MR.JUSTICE PRADEEP D.WAINGANKAR CRIMINAL APPEAL No.1239/2010 BETWEEN: 1. SURESHA S/O MAHADEVAPPA, 37 YEARS 2. DAYANANDA S/O MAHADEVAPPA, 42 YEARS 3. NANJUNDASWAMY @ SADDAM HUSAIN S/O MAHADEVAPPA, 35 YEARS 4. MAHADEVAPPA @ KUNDA S/O SUBBANNA, 54 YEARS 5. SHIVANANJAPPA S/O NANJAPPA, 36 YEARS 6. REVANNA S/O BASAPPA, 45 YEARS 7. SHIVANNA @ HUTCHA S/O LINGAPPA, 43 YEARS 8. PRABHUSWAMY S/O DEVAPPA, 43 YEARS 9. SRIKANTAMURTHY @ PRAMA 2 S/O BHAGAPPA, 42 YEARS 10. S NAGARAJU @ HALINA NAGARAJU S/O SUBBAPPA, 44 YEARS 11. B R UMESHA S/O RAMAPPA, 37 YEARS 12. BASAVANNA S/O DEVANNA, 45 YEARS 13. KARIYAPPA @ MAHADEVAPPA S/O MARIMEDAI LINGAPPA, 52 YEARS 14. SWAMY @ JALAMANTRI S/O BARAPPA LINGAPPA, 39 YEARS 15. SHIVAKUMAR @ SUPATTI S/O PUTTASWAMAPPA, 44 YEARS 16. RAJASHEKARA S/O SULDDURAPPA, 51 YEARS 17. SHIVANANDASWAMY @ SWAMY S/O JAVANAPPA, 51 YEARS 18. KRUPASHANKAR S/O GURUSIDDAPPA, 37 YEARS 19. SHIVARUDRAPPA S/O SIDDAPPA, 49 YEARS 20. REVANNA S/O DEVAPPA, 42 YEARS ALL ARE R/AT BADANAVALU VILLAGE NANJANGUD TALUK MYSORE DISTRICT. ... APPELLANTS (BY SRI RAVI B.NAIK, Sr.ADVOCATE FOR SRI P. CHANDRASHEKAR, ADVOCATE) 3 AND: STATE BY NANJANGUD RURAL POLICE MYSORE DISTRICT REP. AND INVESTIGATED BY CENTRAL BUREAU OF INVESTIGATION PUBLIC PROSECUTOR BANGALORE. ... RESPONDENT (BY SRI C.H.JADHAV, Sr.ADVOCATE & SRI P.M.NAWAZ, ADVOCATE) THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE PASSED IN SPL. CASE NO.38/2003 DATED 28.10.2010/04.11.2010, ON THE FILE OF VI ADDITIONAL SESSIONS JUDGE & SPECIAL COURT UNDER SCHEDULED CASTES AND THE SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989 AT MYSORE, CONVICTING APPELLANTS/ ACCUSED NOS.1, 4, 6 TO 23 FOR OFFENCES PUNISHABLE UNDER SECTIONS 143, 148, 341, 326, 153A, 302 R/W SEC.149 IPC & ETC. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, N.ANANDA. J. , DELIVERED THE FOLLOWING: 4 J U D G M E N T The appellants 1 to 20 were arrayed as accused 1, 4, 6 to 23 respectively in Special Case No.38/2003 and they were tried for offences punishable under sections 143, 148, 341, 326, 153A, 302 r/w 149 IPC and also for an offence punishable under section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the ‘Act’). Incidentally, it is necessary to state that final report was filed against accused 1 to 23. Accused No.5 died before charges were framed. Accused 2 and 3 died during trial. Therefore, case against accused 2, 3 & 5 abated. The learned Special Judge on appreciation of evidence held accused 1, 4 & 6 to 23 guilty of offences punishable under sections 143, 148, 341, 326, 153A, 302 r/w 149 IPC and sentenced them for rigorous imprisonment for periods ranging from 15 days to life and also sentenced them to pay fine of Rs.15,000/- each for an offence punishable under section 302 r/w 149 IPC. 5 2. We have heard Sri Ravi B.Naik, learned senior counsel for accused and Sri C.H.Jadhav, learned senior counsel for respondent-C.B.I. 3. The learned senior counsel have taken us through the impugned judgment and evidence of all the prosecution witnesses. 4. Before adverting to appreciation of evidence of witnesses and submissions made by learned senior counsel, it is necessary to state the case of prosecution and certain facts which are not in dispute. 5. It is the case of prosecution that accused and private prosecution witnesses, in particular, PW1 to PW10 are natives of Badanavalu Village situate within the jurisdiction of Nanjangud Rural Police Station, Mysore District. The accused belong to Lingayat Caste. PW1 to PW10 and some of the prosecution witnesses belong to Scheduled Caste. There is Sri Siddeshwara Temple in Badanavalu Village. During early part of 1993, Sri Siddeshwara Temple was renovated from funds contributed by the villagers of Badanavalu 6 Village. The differences arose between parties after the inauguration of renovated temple. 6. It is the case of prosecution that accused who belong to Lingayat community of Badanavalu Village were not agreeable for entry of PW1 to PW10 and other persons belonging to Scheduled Caste of Badanavalu Village to Sri Siddeshwara Temple to perform pooja. The dispute was aggravated, some of the prosecution witnesses gave representations to the District Administrative Officers, including the Deputy Commissioner and Superintendent of Police. A Peace Committee was formed on 30.01.1993, during Peace Committee meeting, accused and other persons belonging to Lingayat Community, took time to give their consent for entry of PW1 to PW10 and other persons belonging to Scheduled Caste of Badanavalu Village to Sri Siddeshwara Temple. The second Peace Committee meeting was scheduled on 26.02.1993. PW1 to PW10 and other persons belonging to Scheduled Caste of Badanavalu Village wanted to enter Sri Siddeshwara Temple before 26.02.1993, but could not do so, because Sri Siddeshwara Temple was 7 locked. On 02.02.1993, PW1 to PW10 and other persons belonging to Scheduled Caste of Badanavalu Village, in the presence of jurisdictional Tahsildar and jurisdictional police broke open lock and entered Sri Siddeshwara Temple. The accused and other persons belonging to Lingayat community were enraged by the acts of PW1 to PW10 and other persons belonging to Scheduled Caste of Badanavalu Village. PW1 to PW10 and other persons belonging to Scheduled Caste also wanted to perform pooja in the temple and sacrifice a sheep at a place, one kilometer away from Sri Siddeshwara Temple. Their programme was to perform pooja in Sri Siddeshwara Temple on 26.03.1993 and sacrifice a sheep near a place at a distance of one kilometer from temple and feed the people of their caste. In that connection, they made a representation to jurisdictional police to give protection to them. These acts had further enraged accused and other persons of their caste, persons belonging to Lingayat caste. They had a strong feeling that sacrificing a sheep would defile the sanctity of temple. 8 7. On 25.03.1993 during morning, PW1 to PW10 and other persons belonging to Scheduled Caste of Badanavalu Village had gone to play a 20:20 cricket match in Haniyamballi Village. They won the cricket match. Some of their team members took a different route. PW1 to PW10 were returning to Badanavalu Village after taking food in the house of elder sister of PW1-B.S.Ramu. They were proceeding on bicycles on the road between Badanavalu and Haniyamballi Village. Some of the bicycles were carrying two persons and some bicycles were carrying three persons. They were proceeding near the land of one Prabhuswamy, on the road between Haniyamballi Village and Badanavalu Village at a distance of 1½ kilometers from Badanavalu Village. Accused 1 to 23 had formed an unlawful assembly on the road near the land of Prabhuswamy. They were armed with deadly weapons like choppers, knives and clubs. Accused 1 to 23 wrongfully restrained PW1 to PW10 and deceased persons namely B.R.Narayanaswamy, Nataraj and Madhukar (son of deceased B.R.Narayanaswamy). Some of the accused amongst accused 1 to 23 assaulted deceased 9 B.R.Narayanaswamy, Nataraj and Madhukar with the intention and knowledge of causing their death. They inflicted multiple injuries with choppers, clubs and knives. The above said B.R.Narayanaswamy and Nataraj died at spot, Madhukar died while he was being shifted to General Hospital at Nanjangud. The accused assaulted PW2- B.G.Swamy and PW3-M.Krishnamurthy. Some of the prosecution witnesses ran away and escaped from the assault by accused. PW1 came to Badanavalu Village and took help of villagers of Badanavalu Village and lodged first information with jurisdictional police at 5.30 p.m., on 25.03.1993. PW1-B.S.Ramu had lodged first information against 36 named accused and 25 unnamed accused. At the inception, investigation was conducted by jurisdictional police, later it was handed over to C.B.I. After investigation, final report was filed against accused 1 to 23 as aforestated. 8. Before adverting to submissions made by learned senior counsel for accused and learned senior counsel for C.B.I., with reference to evidence on record and facts and circumstances of the case, it is necessary to state the 10 homicidal deaths of B.R.Narayanaswamy, Nataraj and Madhukar during the afternoon of 25.03.1993 have not been controverted. The place of incident has not been controverted. 9. The post-mortem examination report of deceased B.R.Narayanaswamy (Ex.P.11) would reveal that he had suffered following injuries:- 1. a chopping wound across the occipital region measuring 6” x 2½” x brain deep underlying bone is fractured and the underlying brain is exposed, blood clots seen in and around the wound. 2. an incised wound on the left parietal region measuring 2” x 1” x brain deep underlying bone is fractured, underlying brain is exposed, blood clots seen in and around the wound. 3. another incised wound just behind the wound no.2 measuring 4” x 1½” x brain deep, underlying bone is fractured, underlying brain is exposed, blood clots seen in and around the wound. 4. left pinna is cut at the middle, blood clots seen in and around the wound. 5. an incised wound just above the left eye brow and parallel to it measuring 2” x 1” x bone deep, 11 underlying bone is fractured, underlying brain is seen, blood clots seen in and around the wound.
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