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IN THE HIGH COURT OF BENCH

DATED THIS THE 28 TH DAY OF FEBRUARY 2017

PRESENT

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

AND

THE HON’BLE MR. JUSTICE K.SOMASHEKAR

Criminal Appeal No.2820/2012 connected with Criminal Appeal No.2834/2012 and Criminal Appeal No.2608/2013

Criminal Appeal No.2820/2012:

Between

1. Subhash @ Gundappa S/o Ningappa Desai Aged about 56 Years, Occ: Agriculture R/o. Amminabhavi Village Dharwad Taluk and Dist: 580001

2. Nyamappa @ Nyamdev Desai Aged about 44 Years, Occ: Agriculture R/o. Amminabhavi Village Dharwad Taluk and Dist: 580001

3. Suresh @ Surendra S/o Ningappa Desai Age: Major, Occ: Agriculture R/o. Amminabhavi Village Dharwad Taluk and Dist: 580001 : 2 :

4. Sohan @ Suvarna Subhash Desai Aged about 29 Years, Occ: Agriculture R/o. Amminabhavi Village Dharwad Taluk and Dist: 580001

5. Shivappa Yallappa Totad Aged about 43 Years, Occ: Coolie R/o. Amminabhavi Village Dharwad Taluk and Dist: 580001

6. Dundappa S/o Maharudrappa Karadigudd Aged about 50 Years, Occ: Agriculture R/o. Amminabhavi Village Dharwad Taluk and Dist: 580001

7. Parashuram Bhajantri Aged about 46 Years, Occ: Coolie R/o. Amminabhavi Village Dharwad Taluk and Dist: 580001 ... Appellants (By Shri K.L.Patil, Advocate for Appellant Nos.1 & 3, and Shri B.V.Somapur, Advocate, Appeal against Appellant No.2 is abated)

And

The State of Karnataka by Dy.Sp.H and B Cell C.O.D Bangalore-560001 ... Respondent (By Shri V.M.Banakar, Additional State Public Prosecutor)

This Criminal Appeal is filed under Section 374(2) of the Code of Criminal Procedure seeking to set aside conviction and sentence dated 16.08.2012 passed by the Presiding Officer, Fast Track Court-III, Dharwad (c/c Fast Track Court-I, Dharwad) in Sessions Case No.77/2004 and acquit the appellants. : 3 :

Criminal Appeal No.2834/2012:

Between

Mahaveer S/o Ningappa Desai Age: 50 years, Occ: Agriculture R/o. Village Tq. & Dist. Dharwad ... Appellant (By Shri B.V.Somapur and Shri V.G.Bhat, Advocate)

And

The State of Karnataka Rep. by P.I.,Dharwad Rural P.S., Rep. by State Public Prosecutor Circuit Bench, Dharwad ... Respondent (By Shri V.M.Banakar, Additional State Public Prosecutor)

This Criminal Appeal is filed under Section 374(2) of the Code of Criminal Procedure seeking to set aside the conviction and sentences dated 16.08.2012 passed by the Addl. Sessions and Fast Track Court-I, Dharwad, in Sessions Case No.77/2004 and acquit the appellant/accused No.2 of the charges leveled against him in the interest of justice and equity.

Criminal Appeal No.2608/2013:

Between

State of Karnataka Through Deputy Superintendent of Police H and B Cell C.O.D. Bangalore, Rep. by Addl. State : 4 :

Public Prosecutor, Advocate General’s Office, High Court Circuit Bench Unit, Dharwad ... Appellant (By Shri V.M.Banakar, Additional State Public Prosecutor)

And

1. Subhash @ Gundappa S/o. Ningappa Desai Age: 58 Years, Occ: Agriculture

2. Mahaveer S/o. Ningappa Desai Age: 52 Years, Occ: Agriculture

3. Nyamappa @ Nyamdev Desai Age: 46 Years, Occ: Agriculture

4. Suresh @ Surendra S/o. Ningappa Desai Age: Major Occ: Agriculture

5. Sohan @ Suvarna Subhash Desai Age: 31 Years, Occ: Agriculture

6. Shivappa Yallappa Totad Age: 45 Years, Occ: Coolie

7. Dundappa S/o. Maharudrappa Karadigudd Age: 52 Years, Occ: Agriculture

8. Parashuram Bhajantri Age: 48 Years, Occ: Coolie

All are r/o. Amminbhavi, Dist: Dharwad. ... Respondents (By Shri K.L.Patil, Advocate for R1 & R4, Shri B.V.Somapur and Shri Shakunavalli, Advocates : 5 : for R1, R3 to R8 and R2 served)

This Criminal Appeal is filed under Section 378(1) and (3) of the Code of Criminal Procedure seeking to grant leave to appeal against the judgment of acquittal dated 16.08.2012 passed by the Presiding Officer, Fast Track Court-I, Dharwad, in Sessions Case No.77/2004 thereby acquitting the accused for the offence punishable under Section 302 of the Indian Penal Code and set aside the judgment of acquittal, passed under Section 302 of the Indian Penal Code, dated 16.08.2012, passed by the Presiding Officer, Fast Track Court-I, Dharwad, in Sessions Case No.77/2004 by allowing the criminal appeal and enhance the sentence, passed by the Trial Judge in Session Case No.77/2004 for the offences punishable under Sections 143, 147, 148, 342 read with Sections 149, 448 read with Section 149, 322 read with Section 149 of the Indian Penal Code, in accordance with law.

These Criminal Appeals coming on for hearing this day, Anand Byrareddy J., delivered the following:

JUDGMENT

Heard the learned counsel for the appellants and the learned Additional State Public Prosecutor.

2. These appeals are heard and disposed of together, as they are filed challenging the same judgment.

3. The appeal in Criminal Appeal No.2820/2012 is filed on behalf of accused Nos.1 and 3 to 8. It transpires that : 6 : accused No.3 died during the pendency of the appeal.

Therefore, the appeal against the accused No.3 stands abated and the appeal filed by the State against the respondent No.3 also stands abated. The said appeal is filed, questioning the conviction and sentence imposed on the said accused for offences punishable under Sections 143, 147, 148, 342 read with Section 149, Section 448 read with Section 149, Section

324 read with Section 149 of the Indian Penal Code, 1860

(hereinafter referred to as ‘IPC’, for brevity).

4. The appeal in Criminal Appeal No.2834/2012 is filed by accused No.2, challenging the very same judgment and punishment imposed. The appeal in Criminal Appeal

No.2608/2013 is filed by the State seeking to question the acquittal of the accused for an offence punishable under Section

302 of the IPC.

5. The facts, as stated by the prosecution, are as follows: : 7 :

On 27.11.2012 at about 01:30 p.m. one Basappa Kuri, the resident of Amminabhavi Village, Dharwad Taluk, was said to be going to his sister’s house and that he was under the influence of alcohol and while he was passing via Shanteshwar

Higher Primary School, he had been met by Dhanik Desai, son of accused No.2, who was said to be aged about 14. It is claimed that he had teased Basappa Kuri and had pelted stones at him. Therefore, angered by this, Basappa Kuri is said to have chased Dhanki Desai all the way to his house and Dhanik Desai immediately informed his father that he was being chased by

Basappa Kuri. At which, Dhanik Desai’s father, Mahaveer

Desai and Nyamappa Desai, Suresh Desai, Sohan @ Suvarn

Desai, Shivappa Totad, Dundappa Maharudrappa Karidgudda and Parshuram Bajantri, all of them enraged by the act of

Basappa Kuri, had come out with clubs and other deadly weapons and had started assaulting Basappa Kuri all over his body. By which time, Basappa Kuri’s nephew one Hanumanta had come there and rescued Basappa Kuri and is said to have taken him to his house. : 8 :

6. It is claimed that again at 05:30 p.m., the accused not being satisfied with having assaulted Basappa Kuri enough, had again gone to the house of Hanumanta in search of Basappa

Kuri and that they had trespassed into the house of Hanumanta and dragged Basappa Kuri out, who was said to be in the pooja room of the house into the living room and had assaulted him and he is said to have fallen down at the onslaught. Then he had been dragged by them to the street and tied to a telephone pole and he was continued to be assaulted, after being stripped naked, till about 09:30 p.m. and he is said to have remained tied to the pole.

7. It is further claimed that the Dharwad Rural Police, who had received information of the said incident, had come there and taken Basappas Kuri to the Police Station at about

10:00 p.m. He was said to have been sent for