Arijit Pasayat, J. - (1.) Challenge in this appeal is to the judgment of the Division Bench of the Karnataka High Court disposing of two criminal appeals i.e. one by accused Yankappa (hereinafter described as Rs. A1) who was convicted for offence punishable under Section 302 read with Section 149 of the Indian Penal Code, 1860 (in short the Rs. IPC) and the other field by the State questioning conviction by the trial Court for offence punishable under Section 304 Part I IPC read with Section 149 IPC in respect of A1 to A6. Sentence of 3 years is imposed. According to State, they should have been convicted also under Section 302 read with Section 149 IPC. Appellants 7 to 15 were acquitted by the trial Court which was challenged in the States appeal.
(2.) By the impugned judgment the High Court dismissed the appeal filed by Yankappa (A1) but allowed the States appeal to the extent that A2 to A8 were convicted for offence under Section 302 read with Section 149 IPC. They were sentenced to undergo imprisonment for life. The acquittal in respect of rest as was recorded by the trial Court was upheld by the High Court.
(3.) Factual scenario giving rise to the trial of the accused persons is as follows: The accused No. 1 Yamanappa and 14 others were tried before the Trial Court on charges under Sections 143, 147, 148 & 302 read with Section 149 IPC. The Trial Court convicted the accused No. 1 Yamanappa under Section 302 read with 149 IPC and the accused Nos. 2 to 6 under Section 304 Part I read with 149 IPC. The rest of the accused persons viz. the accused 7 to 15 were acquitted of all the charges framed against them. The accused No. 1 was sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/- under Section 302 IPC and the accused Nos. 2 to 6 were sentenced to undergo RI for three years and fine of Rs. 10,000/- under Section 304 Part-I read with Section 149 IPC. The accused No. 1 filed an appeal against his conviction and sentence in Crl. Appeal No. 315/97. The State also preferred an appeal in Crl. Appeal No. 553/97 against an order of acquittal of the accused under Section 302 read with Section 149 IPC. The accused Nos. 2 to 6 did not prefer any appeal against their conviction and sentence. The deceased is one Mahadevappa aged about 30 years. He was killed on the Musky-Mudgal Road on 28.10.95 at about 8.30 am in the morning. Smt Mallamma (PW-1) is the wife of the deceased. The deceased Mahadevappa along with his wife Mallamma PW-1 and mother CW-5 had been residing in the house situated in his land; on the outskirts of Bailagudda village. Pampanna (PW-2) and Erappa (PW-3) are the brothers of the deceased and they were both residing in the village habitation of Bailagudda. The land of the deceased Mahadevappa was adjoining the land of the accused No. 1 Yamanappa. That is to say, they were possessing contiguous lands. Deceased Mahadevappa had seriously objected to the accused No. 1 Yamanappa digging a borewell near his own borewell and thereafter, the differences arose between the family of the accused No. 1 Yamanappa and the family of the deceased. Since then, there used to be some kind of friction between the members of their two families. While this was so, on the evening of 27.10.95, the cattles belonging to the accused No. 1 Yamanappa entered into the land of the deceased Mahadevappa for the purpose of grazing and in that regard, there was a verbal quarrel between the wife of the deceased (PW1) and the wife of the accused No. 1 namely Sharanamma. This incident was reported by PW-1 to the deceased on his return to the house. Thereafter, on the following morning, at about 8.30 am, after giving the grains (Bajra) to one Muniyappa (PW-4) who had come to the house of the deceased to collect the grains, the deceased Mahadevappa was proceeding along with PW-4 from his house in order to go to Musky, with the intention to lodge a complaint with the police in respect of the incident, which occurred on the previous day evening. When the deceased Mahadevappa was so proceeding along the road near a school, all the accused persons came in a group, armed with various weapons like clubs, axes and spears and after picking up a quarrel with the deceased, they committed assault on, him. Accused No. 1 Yamanappa stabbed the deceased with a spear. The accused No. 6 dealt axe blows on the deceased. The others viz. accused No. 4 Kidiappa, accused No. 7 Ayappa and accused No. 8 Hanumantha assaulted the deceased with clubs. Thereafter, the women accused No. 13 Sharanamma, accused No. 11 Garudamma, accused No. 10 Hanumavva, accused No. 12 Fakiravva and accused N0.14 Shivamma dropped stones on the deceased and so also one Kumarappa brother of Sharanamma and son-in-law of Durgappa. As a result of the assault committed by these accused, the deceased had sustained bleeding injuries on his head and legs. The complainant Erappa (PW-3) and Pampanna (PW- 2), the brothers of the deceased, Mallamma (PW-1), the wife of the deceased and one Shekara Gowda (PW-6) had intervened to rescue the deceased. But they were not successful in preventing the accused from committing the assault on the deceased. Thereafter, before the deceased Mahadevappa could be shifted to the hospital for treatment, he died on the spot. The PSI PW-17 who was on village rounds came to the spot at about 11 am and recorded the statement of Erappa (PW-3) which is as per Ex.P.1 and treated the same as the FIR. On the basis of such FIR Ex.P.1, the investigation was taken up and on completion of the investigation, the charge sheet was laid against the 15 accused persons. At the trial, the prosecution had examined PWs 1 to 21. Of them, PWs 1 to 4 & 6 claimed to be eye witnesses to the occurrence. PW-5 was also examined as an eye witness, but he did not support the prosecution case in its entirety. PWs 7 & 8 had come to the spot immediately after the assault and they were informed of the occurrence by PW-1. PW-9 is a witness for the inquest proceedings held on the dead body of the deceased and the spot panchanama conducted over the place of incident as per Exs P.6 & P.7.;