Section 34 IPC.

JUDGMENT

Chandramauli Kr. Prasad, J.:-

Appellant No. 1, Goudappa (Accused No.3), Appellant No.2, Chhannappa @ Ajjappa (Accused No.4) and Appellant No. 3, Mahadevappa (Accused No.5) aggrieved by their conviction and sentence, have preferred this appeal with the leave of the court.

2. Altogether five brothers namely, Basappa, Vipakshappa, Goudappa, Channappa @ Ajjappa and Mahadevappa were put on trial for offence under Section 143, 148, 452, 341, 302, 427, 504 and 506 read with Section 149 of the Indian Penal Code. The trial court acquitted accused no. 1, Basappa and accused no. 2 Vipakshappa of all the charges. Accused no. 3, Goudappa and accused no. 4, Channappa @ Ajjappa were, however, held guilty under Section 304, Part II read with Section 109 of the Indian Penal Code and sentenced to undergo simple imprisonment for one year. Accused no. 5, Mahadevappa has been convicted under Section 304, Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. They have, however, been acquitted of all other charges.

3. State of Karnataka, aggrieved by the order of acquittal of the aforesaid two accused and conviction of other three only under Section 304, Part II, instead under Section 302 of the Indian Penal Code and those convicted and sentenced also preferred separate appeals before the High Court. Both the appeals were heard together and disposed of by a common judgment. The High Court by the impugned judgment and order has set aside the judgment of acquittal and held all the accused guilty under Section 143 and 148 of the Indian Penal Code and sentenced them to pay fine of Rs. 1,000/- on each count with a default clause. Those three found guilty under Section 304, Part II read with Section 109 or under Section 304, Part II of the Indian Penal Code simplicitor have, instead, been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life with default clause.

4. Matrimonial discord between deceased Channappa and Kalavathi, daughter of accused no. 1, Basappa is the cause of the crime. All the accused are brothers and reside in Village Navalur within Dharwad District of the State of Karnataka. Kalavathi was married to deceased Channappa, who was also the resident of the same village, houses of both being situated within a distance of 100 ft. from each other. Marriage between them had taken place on 5th of May, 1996. The relationship between the couple was not cordial and, according to the prosecution, as usual the elders of the village convened a Panchayat in which the father of Kalavathi i.e. accused no. 1 Basappa wrote an undertaking (Exh. P-6) to counsel his daughter and not to blame anyone else, if any untoward incident happens. However, this did not bring peace and matrimonial harmony and Kalavathi left the matrimonial house without informing anybody. This was not liked by her husband, Channappa and he stopped her entry in the matrimonial house. All the accused thus nurtured ill-will against him.

5. According to the prosecution, on 9th of January, 1998 at about 9.30 P.M. the deceased Channappa, his brother Manjunatha (PW-1), mother Siddawwa (PW-2) and grandson of PW-2, Manjunath (PW-3) were watching TV. The deceased Channappa at that time was chewing paan and came out of the house to spit. Accused Basappa started abusing him alleging that he failed to keep his daughter, whereupon all the accused entered the house and accused no. 3 Goudappa and accused No. 4 Channappa @ Ajjappa caught hold of the deceased and accused no. 5 Mahadevappa stabbed him with jambia over the left side of the chest. The blow was so severe that it penetrated into the heart and liver. Prosecution has further alleged that accused no. 1, Basappa pelted stone over the door of the house whereas accused no. 2 Vipakshappa damaged its front door with an axe. Manjunatha (PW-1), Siddawwa (PW-2) and Manjunath (PW-3) claimed to have seen the incident. Manunatha (PW-1) conveyed the message t