Point of law: Conviction – Modified - witnesses are vital in nature and so also they are the natural witnesses even though they have been stated that they are related to each other and interested witnesses- accused Nos.2, 3 and 4 are not liable for punishment under section 302 of IPC but they are liable for punishment under section 304

JUDGMENT :

K. SOMASHEKAR, J.

1. The accused Nos. 2 and 4 are arranged as appellants Nos. 1 and 2 in Criminal Appeal No. 100003/2017 and accused Nos. 1 and 3 are arranged as appellants Nos. 1 and 2 in Criminal Appeal No. 100340/2016. They have preferred these appeals challenging the judgment of conviction and order of sentence rendered by the learned II Addl. District and Sessions Judge, Belagavi (hereinafter referred to as ‘the trial Court’ for brevity) in S.C. No. 287/2013 dated 22.11.2016, whereby the accused Nos. 1 to 4 have been convicted for the offences punishable under Sections 302, 341 and 506 read with Section 34 of the IPC, 1860. Accused Nos. 1 to 4 are sentenced to undergo imprisonment for life and to pay fine of Rs. 25,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 302 read with Section 34 of the IPC. Further accused Nos. 1 to 4 are sentenced to undergo imprisonment for a period of one month and to pay fine of Rs. 1,000/- each and in default of payment of fine, to further undergo imprisonment for a period of one month for the offence punishable under Sections 341 read with Section 34 of the IPC. Further accused Nos. 1 to 4 are sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 5,000/- each and in default of payment of fine, to undergo imprisonment for a period of three months for the offence punishable under Section 506 R/w. Section 34 of the IPC and all the sentences against accused Nos. 1 to 4 are ordered to run concurrently.

2. Being aggrieved by the same, accused Nos. 1 to 4 are before this Court seeking setting aside of the judgment of conviction and order of sentence rendered by the trial Court against each one of the accused, which is incorporated in the operative portion of the sentence held by the trial Court, alleging among the grounds therein in S.C. No. 287/2013 dated 28.11.2016.

3. The factual matrix of the case of the prosecution are as under:

Accused Nos. 1 and 2 are the owners of the land bearing Survey No. 23/5 situated in the limit of Vaghavade village. The aforesaid accused No. 1 and 2 agreed to sell the property in favour of the deceased Shrikant Nagendra Ambolkar. There was an agreement of sale dated 31.01.2008 entered into between accused Nos. 1 and 2 and the deceased. As on the date of agreement of sale held in between them, they said to have delivered the possession of land in favour of the deceased and received a sum of Rs. 2,00,000/- as earnest money towards total sale consideration of Rs. 2,50,000/-. Thereafter the deceased said to be in possession and cultivation of the said land. It is further stated that accused Nos. 1 and 2 namely Vithal S/o Dakhalu Yalebailkar and Yallappa S/o Dakhalu Yalebailkar failed to execute the sale deed in terms of the agreement of sale held in between them and the deceased, in spite of several requests made by the deceased. Subsequently the deceased initiated a civil suit before the Court of Principal Civil Judge and JMFC, Belagavi in O.S. No. 849/2013 for the relief of Specific Performance of Contract in respect of the suit schedule property depicted therein. Due to institution of the civil suit by the deceased against them, there was some ill-will developed in between the deceased and accused Nos. 1 and 2 and they were also angry against deceased Shrikant. In O.S. No. 849/2013 the deceased obtained a temporary injunction order against accused Nos. 1 and 2 for not to alienate the suit property stated in the agreement of sale entered between them. The deceased thought that a temporary injunction granted in the aforesaid civil suit was in his favour protecting his possession over the disputed property.

4. This is the sum and substance of the prosecution case initiated against the accused. On 16.06.2013 the deceased along with his younger brother Jyotiba Nagendra Ambolakar, who is arranged as PW-1, PW-2 Mahesh Shrikant Ambolakar,