Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 165 OF 2004

SEENA @ SRINIVASA … APPELLANT

VERSUS

STATE OF KARNATAKA … RESPONDENTS

WITH

CRIMINAL APPEAL NOS. 166-167 OF 2004

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA,J.

These appeals are directed against the judgment dated 9

th

December, 2002 passed by the High Court of Karnataka at Bangalore

in Criminal Appeal No.326/99 c/w Criminal Appeal No. 310/99. By

the impugned judgment High Court reversed the judgment of Addl.

District and Sessions Judge, Bangalore Rural District, Bangalore in

S.C. No. 42/88 by acquitting accused no.3 who stood charged under

Section 302/34 IPC and partly allowed the appeal filed by accused

no. 2 by modifying the conviction from offence punishable under

Section 302 IPC to the offence under Section 326 IPC.

2.Criminal Appeal No. 165 of 2004 has been filed by the

appellant-Seena @ Srinivasa (accused no.2) against the order of

conviction and sentence under Section 326 IPC. Criminal Appeal Nos.

166-167 of 2004 have been preferred by the State of Karnataka; (i)

against the acquittal of accused no. 3-Ramanna @ Rama and (ii)

against modifying the conviction of accused no. 2 Seena @

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Page 2 Srinivasa from the offence punishable under Section 302 IPC to

offence punishable under Section 326 IPC.

3.Original accused no. 1 Chaluvaiah @ Chaluva and accused no. 3-

Ramanna @ Rama are brothers while accused no. 2-Seena @ Srinivasa

is the sister's son of accused no. 1 and 3. While the accused no. 2

is the resident of Yeshwanthapura, Bangalore, accused no. 1 and 3

are the residents of Chinigappanapalya, Solur Hobli Magadi Taluk,

Bangalore District.

4.Accused no. 1 died during the trial and, therefore, only the

accused nos. 2 and 3 were tried for the offence under Sections 302

and 307 read with 34 IPC.

5.The case of the prosecution is that on 22

nd

January, 1988 PW.1-

Channarayappa decided to inform police about the threats caused to

them by accused nos. 1,2 and 3. Therefore, he sent his brother

Channegowda (deceased) along with Venkateshaiah CW 14 to Kudur

Police Station to lodge report. Channegouda along with

Venkateshaiah reached police station and after giving report,

returned to the village near Hudukunte at around 12 noon. At 1.00

p.m. Channegowda, the deceased accompanied CW1 Channarappa to

graze cattle and donkeys to a place called Mandekal Bayalu. They

left cattle for grazing and Channegowda sat on a rock. At

1.00p.m., the accused nos. 1, 2 and 3 were seen going to the spot

where Channegowda was sitting, armed with choppers. According to

the prosecution accused nos. 1, 2 and 3 proceeded to that spot in

Mandekal where Channegowda was sitting, accused no.3 lifted the

chopper and hit on the left leg of Channegowda causing injury

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Page 3 above the knee and below the knee. Similarly, accused no. 1 raised

chopper to hit the deceased-Channegowda on his head. The

deceased raised his hand towards the blow, but the blow fell on the

left hand. At the same time, accused no. 3 hit on the right leg of

the deceased-Channegowda with chopper. Screaming of the deceased-

Channegowda attracted the attention of CW1-Channarayappa.

6.Further case of prosecution is that CW1-Channarayappa rushed

towards his brother deceased-Channegowda but he was chased by

accused nos. 1 and 2. They chased him upto the land of

Gangadharappa. Gangadharappa -CW.3 saw the accused nos. 1 and 2

chasing Channayarappa and asked him the reason. Channarayappa

rushed towards the land of Ganagadharappa CW.3. Accused no. 1

started pelting stones on Channarayappa causing injuries.

Ganagadharappa advised accused nos. 1 and 2 to go away. He saw

both the accused going with choppers. After accused nos. 1 and 2

left the spot, Channarayappa rushed to his house to bring water to

be given to his brother deceased-Channegowda, when he returned to

the spot, Channegowda had already succumbed to the injuries. He

returned to the village and informed the residents of the village

whose name is also described as Channegowda -CW.12 and Chandrapa

-CW.13. He requested them to go and lodge report at the Nelamangala

Police Station and they alongwith another person informed about the

incident to police. At about 10.00 or 10.30p.m. police officials

came to the spot Chanarayappa and others submitted the report to

the Sub-Inspector of Police Sidegowda who visited at the place of

occurrence. He received the report and sent it to Kudur Police

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Page 4 Station to P.C. 1138 Nagaraj Gowda for being registered it as an

FIR. At 11.30p.m. the Sub-Inspector of Nelamangala Police was

informed and both of them searched for accused named in the report.

7.On 22

nd

January, 1988 the P.S.I. D.S. Siddegwoda-CW.17 continued

investigation and prepared spot mahazar on next day between

6.45a.m. to 7.30 a.m. in the presence of panch witnesses by name

Krishnappa, Kempahonnegwda, Muddeveeraiah and Shivanna. He also

conducted inquest on the dead body in the presence of witnesses.

He noticed injuries on the legs, left-hand and other parts of the

body. He seized blood-stained mud and sample mud from the spot. He

also saw a sickle lying on the spot and seized the same.

Chanarayappa was also sent for medical examination with a memo.

After autopsy, clothes were seized.

8.On 22

nd

January, 1988, Circle Inspector visited Hudkunte

village and examined Channarayappa, Govindaiah and Gangadharapa and

others. He recorded statement. He deputed the staff to search and

after a long search on 9

th

March, 1988, the CI received information

that the accused were hiding at a particular place. He visited

R.M.C. Yard, Yeshwanthpura. On 10

th

March, 1988, at 3.30 a.m. he

arrested the accused no. 1 Chaluvaiah from the house of his aunt.

He interrogated him. Accused no.1 revealed the whereabouts of

accused nos. 2 and 3. Thus, he rushed to K.G. Circle in Bangalore

and noticed that on the pedestrian cross bridge on the Kempegowda

road near the circle, accused no.2 Seena and accused no.3 Ramanna

were sleeping. They were apprehended. They were brought to Solur

outpost and kept them in safe custody. They were interrogated and

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Page 5 they gave voluntary statement disclosing place where they have

hidden the weapons used in the assault and their clothes. Accused

no. 1 gave voluntary statements as per Ex.P.1 and Ex.P.2

respectively. Accused no.3 gave voluntary statement as per Ex.P-3.

They were taken to village Hudukunte. In the presence of witnesses

by name Shivashakaraiah, Muddaveeraiah, Marirangaiah and

Puttamallaiah, he guided police to a particular place and from

behind bushes, he took out a chopper and produced the same which

is marked MO.8. Mahazar was prepared vide Ex.P.11. Accused no.2

gave similar statement and guided the police to another spot from

where one more chopper was recovered which is marked at MO.6 and

the same were seized under Ex.P-12. Seena also gave a voluntary

statement which also lead to recovery of another chopper.

9.On the basis of eye witness account given by CW1 Channarayapa,

CW.3-Gangadharappa, Shivanna, Rangaswamaiah, Govindaiah,

Channegowda and also on the basis of recovery of blood stained

weapons at the instance of the accused, the investigating officer

concluded that the accused Nos. 1 and 2 shared a common intention

to murder Channegowda at around 4.30p.m. in Mandekal Bayalu on 22

nd

January, 1988. Thus, he arraigned them for offence punishable u/s

302 read with section 34 IPC and filed charge-sheet.

10. Since the accused had pleaded not guilty of the charges

leveled against them, trial was fixed. Some witnesses were examined

by the then I additional District and Sessions Judge but on his

transfer, the trial was abandoned. Later trial was re-fixed and

concluded after recording evidence of prosecution.

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Page 6 11.The prosecution opened its case and examined 19 witnesses and

produced in evidence Ex.P.1 to P.32. Prosecution also produced

material objects M.Os.1 to M.Os.23 on behalf of the accused.

Reliance was also placed as Ex.D.1 to D.10 on behalf of the

accused.

12.Accused no. 1-Cheluvaiah @ Cheluva died during the trial. The

defence counsel reported this fact to the Court on 20

th

December,

1996 and filed its report. Consequently, the charge against accused

no. 1 abated.

13.In the circumstances, the incriminating evidence led by the

prosecution was brought to the notice of surviving accused viz.,

accused no.2 -Seena and accused no.3 -Ramanna. As required, both

were examined under Section 313 Cr.P.C. and their explanation was

sought. Both the accused denied all incriminating circumstances and

put upon a defence of denial simplicitor. Even though called upon

to lead evidence in defence, if any, the accused declined.

14.Learned counsel for the appellant-State of Karnataka submitted

that in view of statement of eye-witness PW.1-Channarayappa and

PW.2 Gangadharappa, post-mortem report, as corroborated by PW-8

Dr.K.N. Rajanna, PW.9-Panch witness and PW.19 -Investigating

Officer, the Trial Court was right in coming to a definite finding

that the accused nos.2 and 3 were guilty for the offence punishable

under Section 302/34 IPC.

15.Learned counsel for the accused no.2-appellant (herein) in the

connected appeal contended that both the PWs.1 and 2 are related to

the deceased, there are material contradictions in their statements

6

Page 7 and on the basis of such statements the appellant-Seena-accused no.

2 cannot be held guilty for the offence under Section 302 or even

under Section 326 IPC.

16.We have heard the learned counsel for the parties and perused

the evidence on record.

17.P.W.1 Channarayappa has deposed that on the date of incident

he sent Chennagowda-deceased to Kudur police station to complain to

the SHO about the threats caused by the accused. He sent C.W.14

-Venkateshaiah (PW.7) alongwith Chennegowda to lodge report. Both

returned to the village at 12.00 noon. At 1.00 p.m. PW.1

Channarayappa accompanied Channegowda to Mandekal Bayalu. They

allowed the cattle and donkeys to graze and spend time in that area

itself. At 4.00P.M. accused nos. 1, 2 and 3 reached that spot from

Holesidda near Mandekal Bayalu. They were armed with chopper.

According to PW.1, Channegowda was sitting on a rock near Mandekal.

Accused Nos. 1, 2 and 3 rushed towards him, Channegowda got up on

the rock. Accused no.3-Ramanna hit on the left leg of Channegowda

causing injury above the ankle and below the knee with chopper. At

the same time, accused no. 1-Seena lifted chopper and hit

Channegowda on the head. Channegowda tried to prevent the blow by

raising his hand. The blow tendered by accused no. 1 on head fell

on the left hand injuring his fingers. Simultaneously, accused

no.2 assaulted the deceased with a chopper on the right leg. The

deceased fell down. P.W.1 deposed that he saw all that happened and

raised an alarm seeking help. The accused turned towards him

causing threats. PW.1 started running away from the place and he

7

Page 8 was chased by accused 1 and 3.

According to PW.1 he was very much frightened and ran towards

his village to get help. On the way the accused 1 and 2 continued

to chase PW.1 upto the land of Gangadharappa who was examined as

PW.2. PW.1 ran and sought shelter. Accused 1 and 2 stood outside

the land and continued to pelt stones at PW.1. The stone caused

injury to his right thigh. The accused asked him to come out. At

that time PW.2-Gangadharappa intervened and asked them to go away.

PW.1 returned to village and after collecting water went back to

the place of occurrence. When he came to the spot he saw

Channegowda dead. Again he returned to his village and informed the

villagers.

18.PW.2-Gangadharappa deposed that 7 to 8 years ago he was

working on his land around 4.30 P.M. when PW.1-Channarayappa came

running from Bandekagalu shouting “Gangadharappa Gangadharappa”.

When he asked PW.1, he informed PW.2-Gangadharappa that accused

nos.1 and 2 were chasing him. According to PW.2 both the accused

reached there holding chopper in their hands. They stood outside

and pelted stones at PW.1 which caused injury to his right thigh.

PW.2 advised them to go away. The statement of PW.2 fully

corroborates the statement of PW.1 that he was chased by accused

nos. 1 and 2.

19.Learned counsel for the appellant (accused no.2) has seriously

disputed the version given by PW.1 and PW.2 with regard to their

being together during the incident. At this juncture, it would

suffice to say that PWs.1 and 2 have given similar statements

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Page 9 regarding accused no. 1 and 2 were chasing PW.1 up to the land of

PW.2. PW.2 Gangadharappa had further deposed that the next day

police arrived and checked his garden land which was pointed out by

PW.1 -Channarayappa. PW.1 acted as witness to the seizure of stones

used by the accused to assault him. The stones are marked as M.Os.

13(a) (b) (c) and (d). PW.2 has stated that the stone marked as

M.O. 13(a) was thrown by accused no.2 to hit PW.1 and the same was

seized under the mahazar Ex.P.2.

20.PW.7-Venkataiah is a witness to seizure of material objects.

i.e. stones from the land of Gangadhara PW.2. The witness has

spoken clearly that he was summoned by the police to the land of

Gangadharappa which was pointed out by PW.1 -Channarayapa and

around 2.00p.m. mahazar was prepared seizing stones totally four in

number marked as M.Os.15 to 18 under Ex.P.2.

21.PW.8-Dr.K.N.Rajanna was working as Medical Officer in Primary

Health Centre, Guddemaranahalli during 1987-88. His statement

reveals that on 23.1.1988 he received requisition from the

Investigating Officer to conduct autopsy on the dead body. He

proceeded to conduct the post-mortem on the body of the deceased

-Channegowda. Post mortem conducted between 1.00p.m. to 3.00p.m..

According to the autopsy report the age of the deceased was around

45 years. External examination revealed that Clotted blood was seen

on four places. Right hand was fully flexed at elbow and left hand

flexed at right angle over the elbow. Rigor mortis present. Blood

stains were present over the right and left leg.

There were injuries described as follows:

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Page 10 i)Incised injury palmer aspect of proximal pharynx

or left index finger situated horizontally measuring 1”

x ½”x 1¼”.

ii)Incised wound palmer aspect of proximal pharynx of

left middle finger ½”x ½”x ½” situated horizontally.

iii) Incised wound palmer aspect of proximal pharynx

of left right finger 1”x½”x½” situate obliquely.

iv) Incised wound inner aspect of left knee 1½”x½”x½”.

v)Incised wound outer aspect of left ankle about 2”

above lateral malleolus situate horizontally measuring

2½”x1½”x1” a lower end of left fibula bone cut along

with the wound.

vi)Incised wound over left calf area at the junction

of lower 1/3

rd

and upper 2/3

rd

horizontally. 5”x2”x1”

left Fibular bone cut along with the wound.

Vii) Incised wound over left tender-achilles 1½”x½”x

¼”.

Viii) Incised wound situated horizontally over inner

aspect of right leg about 3% above medical malleolus

measuring 1”x1¼”x1”and 1¼” .

ix)Incised wound outer lower part of right leg

3”x2”x2” cutting lower end of fibula bone on the right

side.

x) Incised wound over the right shin bone at the

junction of lower 1/3

rd

and upper 2/3

rd

obliquely

situated 1¼”x 1¼”x 1¼”.

The injuries nos. 1 to 10 noticed above described as ante

mortem in the nature by the doctor. After dissecting the body he

examined the valves, ribs, cartridges, Piraeus, larynx and trachea

and found those parts healthy. Right lung, left lung pericardium

10

Page 11 healthy but pale. Heart empty, Abdomen showed valve, petitionlum,

mouth, pharynx, esophagus were also found healthy. Stomach

contained undigested food particles. Genitals were found intact.

During dis-section doctor noticed that the muscles and bones

and blood vessels were good at the site of injury nos. 1 to 3,

5,6,8 and 9. There was fracture of left fibular bone cut along

with injury nos. 5 and 6. Right fibular petitionlum bone cut with

the wound injury no. 9. According to PW.8 -doctor, death was due to

shock and haemorrhage as the result of injury nos.1 to 10. These

injuries were caused by external violence. He issued post mortem

report marked at Ex.P.3.

While describing the injuries, PW.8 deposed that injury nos. 1

to 8 were incised wound and could be caused by object like chopper

marked in this case as MO.6. According to him injury nos. 1,2 and 3

could also be caused by similar object like MO.6(a).

22.PW.9 -Kempahonnegowda is a witness to inquest. He deposed that

police summoned him to the spot where dead body was lying. He

accompanied Krishnappa. Body was near Hutta (anthill) and a sickle

was also lying nearby. It was blood stained. There was also a kukke

(basket). Police prepared mahazar seizing both items under Ex.P.7.

The sickle was marked as MO.5. The witness also authenticated the

inquest report marked as Ex.P.8. Witness submitted that the police

searched clothes of the dead body and found 10 muchagada leaves, a

thread and a red coloured cloth piece. All were blood stained and

recorded in mahazar. Like other witnesses even this witness

maintained consistency in statement with regard to aspects spoken

11

Page 12 to by him in examination-in-chief even though when cross-examined

in detail. During cross-examination, the witness stated about the

blood stains at the spot. Four to five spots were blood stained

which were measured by police officials. It was also elicited that

during first mahazar body was not shifted.

23.PW.11-Marirangaiah is another important witness of the

prosecution as he told about recovery of material object at the

instance of the accused. According to him, Kudur police officials

summoned him around 10.a.m. 8 years prior to evidence before the

court. The police officials were accompanied by the officials of

Nelamangala police. They brought Chaluvaiah A.1 along with other

accused. In the presence of PW.2, CW.25 Shivashankar and CW.27

Puttamallaiah, A.1 Chaluvaiah guided the police to Kharab land from

under banyan tree and karegidda (head of dry leaves) he took out

chopper and produced before the police which is MO.8. It was seized

under Mahazar Ex.P.11. The said chopper was blood stained and

marked as MO.6(a). He further stated that accused no. 2 who was

also in the jeep guided the police to this land and from under

dry leaves took out chopper marked as MO.6 and produced the same

which was seized under mahazar Ex.P.12. He told about accused no.3

guiding police to another spot and from under the banyan tree

chopper MO.7 which was seized under Ex.P.13, was recovered.

24.PW.11-Marirangaiah further stated that accused no.1-

Chaluvaiah of his own stated that he would give his clothes. He

guided police to his house. From a drum he took out the panche and

other clothes which were stained with blood. They were seized under

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Page 13 mahazar Ex.P.14. The shirt was marked as MO.19 and the panche

marked as MO.20. Accused No. 2-Seena guided police to his house and

produced shirt which is MO-21. The same was seized under Ex.P.15.

Accused no. 3-Ramanna guided police to his house and produced

shirt MO.22 which was seized under Ex.P.16. According to witness,

accused no. 2-Seena again guided the police to the land of

Gangadharappa and produced a club which was seized under Ex.P.17

and marked as MO.23.

25.According to PW.1 when he was grazing his cattle a little away

from his brother, he noticed that accused persons approaching his

brother and attacking him with choppers. When he attempted to reach

the place of occurrence, the accused chased him till the garden of

PW-2 -Gangadharappa. He narrated the incident not only to PW.2 but

also to PW.6 -Channegowda and his wife. Though PW.1 specifically

stated that all the three accused assaulted his brother with

chopper. PW.2 does not speak any specific act or presence of

accused no.3. According to Ex.P.1; PW.1 stated in his complaint

that Accused Nos. 1 and 2 chased him and he entered the garden of

PW.2 Gangadharappa. Further, he stated that they pelted stones

towards him. PW.3 also did not mention the presence of accused no.3

near the garden of PW.2. Therefore, the evidence of PW.6 also

raises certain doubt regarding the presence of accused no. 3.,

therefore, we find that some reasonable doubt arises as to the

presence and participation of accused no.3 in the commission of

the offence.

26.On review of the entire evidence on record, we find that the

13

Page 14 prosecution has failed to prove the presence and participation of

accused no.3 in the commission of the offence and, therefore,

accused no.3 was rightly acquitted by the High Court of the offence

under Section 302 IPC.

27.The evidence of PW.1 regarding participation of accused no. 1

and accused no. 2 and their presence nearby the place of incident

and immediately after the incident finds corroboration from the

evidence of PW.2-Gangadharappa, an independent witness. No enmity

is attributed to him and nothing is brought out in the cross-

examination as to why PW.2 should falsely implicate accused no. 1

and 2 in the commission of the offence. There is no evidence on

record to suggest that some other persons involved in the

commission of the offence.

28.Therefore, in so far as accused no. 2 is concerned, we find

ample evidence to prove his presence and participation in the

commission of offence so we hold that the accused no. 2 was rightly

convicted by the Trial Court for the offence under Section 302 IPC.

29. The High Court though agreed that the prosecution proved the

presence of accused no.2 in the commission of the offence, wrongly

held that the charge under Section 302 IPC was not proved. The

High Court wrongly formed an opinion that the offence under Section

326 IPC has been established against the accused no. 2.

30.In view of the findings recorded above, we have no other

option but to set aside the impugned judgment dated 9

th

December,

2002 passed by the High Court of Karnataka at Bangalore in so far

as accused no. 2 Seena @ Srinivasa is concerned. The part of the

14

Page 15 said judgment acquitting accused no.3-Ramanna @ Rama is upheld.

The Trial Court judgment dated 13

th

January, 1999 passed by the I

Additional District and Sessions Judge in respect of accused no. 2

stands restored.

Criminal Appeal No. 165 of 2004 filed by the accused no. 2 is

dismissed.

The Criminal Appeal Nos. 166-167 of 2004 filed by the State of

Karnataka is allowed in part, in so far as it relates to accused

no.2 –Seena @ Srinivasa. He is directed to be taken into custody

if he is on bail, for undergoing the remainder period of sentence.

…………………………………………J.

(SUDHANSU JYOTI MUKHOPADHAYA)

…………………………………………J.

(RANJANA PRAKASH DESAI)

NEW DELHI,

July 2, 2014.

15