- (1.) This appeal arises out of the following facts: Gulappa deceased was the younger brother of Kareppa Gadad (PW.1) and Ramappa Gadad (CW-6). They resided separately in their garden near village Koonur, Jamkhandi Taluk. About four months prior to August 2002 Kareppa Rangappa Kote, the father of A.1 Birappa, was found dead in a well in the village Koonur and it was not known as to whether it was an accidental death or a murder, but rumour had it that he had been murdered by Gulappa, the deceased in the present matter. This rumour caused a great deal of ill will between Birappa, appellant No. 1, and the deceased on which the appellant threatened that he would kill him one day. On 8th August 2002, which happened to be the Amavas day, the deceased went to the Kali Devi temple at about 4.00 p.m. to make his offerings and as he came out from the temple and sat down at a nearby tea shop to take tea he was attacked by Birappa, his cousin Kareppa A.2 and Muttappa A.3. Mutappa also made an exhortation than as it was Amavas day and a sacrifice had to be offered to the Goddess, Gulappa ought to be that sacrifice. This created a fear in the mind of Kareppa (PW.1) and Gulappa and they attempted to escape from the place by rushing towards the Hulyal road. They were however chased by the accused and whereas Kareppa caught hold of the deceased Birappa caused him several injuries. Kareppa (PW.1) ran for his life and informed his brother Ramappa about the accident and also the wife of Gulappa, Shivakka (PW.11). They also attempted to trace out the whereabouts of Gulappa during the night but remained unsuccessful and it was only at 9.00 a.m. the next morning that they found his dead body in the sugarcane field of one Derappa Shivaramatti. They also noticed that his neck has been virtually severed from the body. Kareppa (PW.1) thereafter went to the Jharkhandi police station and made a statement at about 2.00 p.m. before Malakappa Siddappa Malabagi (PW.12) and a case under Section 302, Section 201 and 109 read with Section 34 of the IPC was duly registered. The dead body was also dispatched for its post-mortem and was received at the hospital at 5.45 p.m. on 9th August 2002. The accused A.1 and A.2 were arrested on the 10th August 2002 and on the completion of the investigation they were charged for offence punishable under Sections 302/201 and 109 read with Section 34 of the IPC and A.3 for the offences punishable under Sections 302 read with Section 109 of the IPC. The accused pleaded not guilty and were brought to trial.
(2.) The Trial Court relying primarily on the evidence of PW.1 as supported by medical evidence and the circumstances of the case convicted Birappa under Section 302 whereas Kareppa A.2 and A.3 was acquitted on the ground that no overt act had been attributed to them.
(3.) Two appeals were therefore filed before the High Court. The High Court dismissed the appeal of Birappa and allowed the State Appeal qua appellant No. 2 Kareppa and also convicted and sentenced him to in terms similar to his co-appellant. The acquittal of Muttappa, the third accused, was however maintained. The present appeal has been filed under Section 380 of the Cr.P.C. directly in this Court.;