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Saturday, July 26, 2014

Sec.302 I.P.C- the trial court acquitted the accused under sec.302 IPC - on appeal the high court convicted the accused under sec.302 IPC - Surveyor fixed boundary stone - Accused removed it - deceased when try to refix it - the accused attacked on him with axe on his head and on back resulted in death at Hospital - No sudden provocation, No exemption - intentionally attacked on him to kill as he know the consequences of his acts - not entitled for relief - Apex court held that High court rightly convicted the accused and as such dismissed the appeal = PUNDAPPA YANKAPPA PUJARI … APPELLANT VERSUS STATE OF KARNATAKA … RESPONDENT = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41735

Sec.302 I.P.C- the trial court acquitted the accused under sec.302 IPC - on appeal the high court convicted the accused under sec.302 IPC - Surveyor fixed boundary stone - Accused removed it - deceased when try to refix it - the accused attacked on him with axe on his head and on back resulted in death at Hospital - No sudden provocation, No exemption - intentionally attacked on him to kill as he know the consequences of his acts - not entitled for relief - Apex court held that High court rightly convicted the accused and as such dismissed the appeal = 

 By  the
impugned judgment the High Court partly allowed the appeal preferred by  the
State of Karnataka, set aside the judgment of  acquittal  of  the  appellant
for the offence under Section 302 IPC, held the  appellant  guilty  for  the
offence  under  Section  302  IPC  and  sentenced  him   to   undergo   life
imprisonment.=

We have noticed that there  exists  a  boundary  dispute  between  the
accused persons as well as the family of the deceased.
This  is  clear  from
the testimony of Somappa (PW-2), who has categorically stated that 10 to  15
days prior to the incident, Chandrappa (father of the deceased) and  accused
persons approached them regarding the boundary dispute of  their  lands.
He
himself, Sonnappa (PW-3),CWs-23 and 24 had  advised  both  the  parties  and
fixed the boundaries of their lands.
Thereafter, accused No.1  Pundappa  got
his land measured by a private surveyor. The private surveyor confirmed  the
boundary fixed by the elderly persons.
It is in  the  evidence  of  Laxmavva
(PW-7) that while she was grazing the sheep near the land of Giriyavva  (PW-
1), there was altercation between the deceased Mahantappa and  accused  No.1
regarding fixing of the boundary stone. 
It is also seen  from  her  evidence
that the boundary stone was found  removed  by  accused  No.1  and  deceased
Mahantappa attempted to refix the stone at  the  same  place.  
On  this  the
accused No.1 assaulted the deceased Mahantappa with axe over  his  head  and
back of the  neck  resulting  in  fracture,  which  had  led  to  his  death
subsequently in the Hospital.
26.   Considering the facts and circumstances of the  case  and  on  careful
examination of the act of the accused as proved by testimony  of  witnesses,
we are of the opinion that the said act of accused which resulted  in  death
of Mahantappa neither  comes  within  the  ambit  of  the  exceptions  under
Section 300 IPC nor within the scope of Section 304 IPC.  
 It  is  not  an
act done under grave and sudden provocation or in good faith or not an  act,
which he in  good  faith  believes  to  be  lawful  and  necessary  for  due
discharge in his duty or not  an  act  committed  without  premeditation  in
sudden fight. 
Therefore, the Appellate Court rightly held that  the  act  of
the accused No.1 thus falls  within  the  ingredients  of  Section  300  IPC
punishable under Section 302 IPC.
27.   We find no ground to interfere with the impugned judgment. In  absence
of any merit, the appeal is dismissed.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41735

                                                                REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.1251  OF 2006

PUNDAPPA YANKAPPA PUJARI                            … APPELLANT

                                   VERSUS

STATE OF KARNATAKA                                 … RESPONDENT

                               J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.


      This appeal is directed against the judgment  dated  16th  June,  2006
passed by the High Court of Karnataka in Criminal Appeal No.9/2000.  By  the
impugned judgment the High Court partly allowed the appeal preferred by  the
State of Karnataka, set aside the judgment of  acquittal  of  the  appellant
for the offence under Section 302 IPC, held the  appellant  guilty  for  the
offence  under  Section  302  IPC  and  sentenced  him   to   undergo   life
imprisonment.
2.    The case of the prosecution is that the complainant –  Giriyavva,  her
sons, Shivalingappa, Adiveppa, deceased Mahantappa and Pundappa as  well  as
accused No.1, Pundappa Yankappa Pujari (appellant herein) and  accused  No.2
Siddappa  Pundappa  Pujari  are  the  resident  of  Yankanchi   village   of
Bagalkot’s Taluk. The land of the deceased’s family as well as the  land  of
the accused is adjacent to one  another.  The  deceased’s  land  is  on  the
northern side whereas the  accused’s  land  is  on  the  southern  side.  In
between there is a band fixed with  boundary  stone.  There  was  a  dispute
regarding fixing of boundary stone between the accused  and  the  deceased’s
father Chandrappa Telagi. On 5th July, 1997 at about 9  a.m.,  accused  No.1
was in  his  land  and  was  removing  the  boundary  stone.  The  deceased-
Mahantappa questioned as to why he was removing the boundary  stone  and  an
altercation took place between accused No.1 and  deceased-Mahantappa.  While
the deceased was putting boundary stone to the pit, accused  No.1  assaulted
him with an axe on his neck and caused severe fracture  and  injuries  which
resulted in profuse bleeding whereas, accused No.2  assaulted  the  deceased
with a stick. Laxmavva (PW-7), who was grazing  her  sheep,  on  seeing  the
incident of assault, shouted.  Immediately, Sangappa  (PW-8),  Chandrashekar
(PW-9) rushed to the spot and witnessed the incident  of  assault.  Laxmawwa
(PW-7) rushed towards the village. On the way, she met Bhimappa (PW-10)  and
Ranganagouda (PW-11) and informed them about the incident, who in turn  went
to the place of incident. Further, she proceeded and informed  the  incident
to complainant-Giriyavva (PW-1), the mother of  the  deceased.  Immediately,
Giriyavva (PW-1) rushed to the place of incident and noticed  the  injuries.
The deceased-Mahantappa was shifted to the village by Bhimappa  (PW-10)  and
Ranganagouda (PW-11). From there,  the  injured  was  shifted  to  Goverdhan
Hospital, Bagalkot.
3.    The injured was treated by Dr. Hanamant (PW-16) on 5th July, 1997  and
immediately, intimation was sent to Sub-Inspector of  Police,  Rural  Police
Station, Bagalkot as per Ex.P-12. The  Sub-Inspector  of  Police,  Sekharapa
(PW-14) on receipt of Ex.P-12 proceeded to Hospital and enquired  about  the
condition of the injured. The Doctor issued an  endorsement  as  per  Ex.P-9
stating  that  the  injured  was  not  in  a  position  to  give  statement.
Thereafter, Sub-Inspector of Police (PW-14)  received  a  written  complaint
Ex.P-1 from Giriyavva, the mother of injured. A  case  in  Crime  No.95/1997
for the offence under Section 326, 324 and 307 read with Section 34 IPC  was
registered and an FIR as per Ex.P-13  was  prepared  and  forwarded  to  the
Magistrate.  In  the  meantime,  the  Assistant  Sub-Inspector  of   Police,
Gousasab(PW-13) received the death intimation report of the injured  as  per
Ex.P10. Accordingly, a requisition was forwarded to the Court as  per  Ex.P-
11 seeking permission to alter the offence to one under Section 302 IPC.  On
the same day,  the  Sub-Inspector  of  Police  proceeded  to  the  place  of
occurrence, prepared a spot  panchnama  as  per  Ex.P-2,  seized  the  blood
stained earth and sample earth-Material Objects (hereinafter referred to  as
the “MOs”) – 1 and 2 and handed over further  investigation  to  the  Circle
Inspector of Police, Pandurang (PW-17). The Circle Inspector of Police  took
over further investigation. He  recorded  the  statement  of  witnesses  and
arrested accused No.1, Pundappa, seized the blood stained  shirt  under  the
mahazar and recorded  his  voluntary  statement  as  per  Ex.P-18.  He  sent
accused No.1, Pundappa to Hospital for medical examination and kept  him  in
custody. On 6th July, 1997, he  proceeded  to  General  Hospital,  Bagalkot,
prepared the inquest panchanama on the dead body of Mahantappa as per  Ex.P-
24 and recorded the statement of the witness. He seized  the  blood  stained
towel and chaddar – M.Os 4 and  5  under  the  panchanama  Ex.P-15.  At  the
instance of the accused No.1, he recovered M.O.10-axe and  M.O.11-stick  and
prepared panchanama Ex.P-7.  The  dead  body  was  subjected  to  postmortem
examination. On the same day accused No.2 was arrested and produced  by  the
Assistant Sub-Inspector of Police. The chargesheet was  filed  against  both
the accused for the offence under Section 302/34 IPC.
4.    Learned Sessions Judge secured the presence  of  the  accused,  framed
charges under Section 302  read  with  Section  34  IPC.  Both  the  accused
pleaded not guilty and claimed to be tried.
5.    The prosecution in all examined  17  witnesses,  marked  24  Exhibits,
produced 11 M.Os. The defence, in their turn, got  marked  Exs.D-1  to  D-6.
The statement of the accused was recorded under Section 313 Cr.P.C. and  the
defence is one of total denial. The accused  did  not  choose  to  lead  any
defence evidence.
6.    Learned Sessions Judge for the reason recorded in his  judgment  dated
15th December, 1998, acquitted  both  the  accused  for  the  offence  under
Section 302 read with 34 IPC. The said judgment of acquittal was  questioned
by the State before the  High  Court  wherein  the  High  Court  passed  the
impugned judgment setting aside the  order  of  acquittal  with  respect  to
accused No.1-appellant, convicting him under  Section  302  IPC  to  undergo
life imprisonment.
7.    Learned counsel for the appellant submitted that  the  view  taken  by
the Trial Court being reasonable, there was no occasion for Appellate  Court
to reverse the order of acquittal by expressing  a  different  view  on  the
same set of evidence. On the other hand, it was submitted on behalf  of  the
respondent that the Trial Court had committed an error  and  had  failed  to
assess the credibility and trustworthiness of the statements  given  by  the
eye-witnesses.
8.          In view of the submissions made by the parties, the  point  that
arises for determination is  :  whether  the  High  Court  is  justified  in
interfering with the order of acquittal by reversing  the  judgment  of  the
Trial Court.
9.    It is settled that if two views are reasonably possible from the  very
same evidence, the Appellate court on re-appreciation of the  same  evidence
cannot impose its own  view.  The  Appellate  Court  may  re-appreciate  the
evidence when it is satisfied that the Trial Court has  committed  an  error
and has failed to  consider  the  credibility  and  trustworthiness  of  the
account given by the eye-witnesses. The evidence on record has  to  be  read
as a whole and it is not proper to reject  one  or  other  evidence  on  the
ground of certain contradictions and omissions which do not go to the  roots
of the case.  If the testimony of the eye-witnesses  are  found  trustworthy
and remained unchanged, ignorance of  such  testimony  can  be  held  to  be
perverse.
10.   In Hem Raj and another vs. State of Punjab, (2003) 12  SCC  241,  this
Court held as follows:
      “36. In this state of the evidence on record, we find  that  the  view
taken by the trial court is also a possible reasonable view of the  evidence
on record. The evidence adduced by the prosecution  is  rather  inconsistent
and creates a serious doubt about the truthfulness of the prosecution  case.
Even if it may be possible to take a different view, we cannot say that  the
view taken by the trial court is not a reasonable view of  the  evidence  on
record. It is well settled that if on the basis of  the  same  evidence  two
views are reasonably possible and the trial court takes the view  in  favour
of the accused, the appellate court, in an appeal  against  acquittal,  will
not be justified in reversing the order of acquittal,  unless  it  comes  to
the  conclusion  that  the  view  taken  by  the  trial  court  was   wholly
unreasonable or perverse and it was not possible to take the view in  favour
of the accused on the basis of the evidence on record.”


11.   In T. Subramanian vs. State of Tamil Nadu,  (2006)  1  SCC  401,  this
Court observed:
“17...Where two views are reasonably possible from the very  same  evidence,
prosecution cannot be  said  to  have  proved  its  case  beyond  reasonable
doubt.....”

12.   In the circumstances where evidence of witness  is  not  found  to  be
wholly trustworthy the principle of severability can  be  applied  and  that
part of the evidence which is reliable may be accepted and  the  other  part
can be discarded. This Court in Haji Khan vs. State of U.P., (2005)  13  SCC
353, held:

      “That part of his evidence which inspires confidence may  be  accepted
and the unreliable part discarded.”

            Further it was also observed that:

“9. From the evidence on record the Sessions Court and the High  Court  have
rightly held that the prosecution has failed  to  establish  the  conspiracy
theory, and that the motive to commit the crime has  not  been  proved,  but
does this mean that the High Court could  not  have  convicted  the  accused
placing reliance on the statement  of  the  eyewitnesses  just  because  the
prosecution failed to prove a particular theory. We do not think so.  It  is
not necessary that if the  prosecution  theory  of  the  conspiracy  or  the
motive fails, the entire case would crumble to the ground.  The  High  Court
has found the version given by the witnesses trustworthy and  found  support
to their statement from the medical evidence and lodging of the prompt  FIR,
apart from the fact that the  appellant  was  apprehended  on  the  spot  or
nearabout the spot of crime with the weapon which was used in commission  of
the crime. When the court finds that the evidence  of  the  eyewitnesses  is
true and can be relied upon, absence of proof of motive  or  the  conspiracy
to commit the crime would not dislodge the  prosecution  from  securing  the
conviction of the accused on the basis of reliable evidence.”


13.   Laxmawwa (PW-7) in her examination-in-chief stated that she  had  gone
to the land of Giriyavva (PW-1), for watching the sheep at 10 a.m.  At  that
time the deceased, Mahantappa had come to the  land.  Accused  persons  were
present  in  the  land.  Accused  No.1-Pundappa  removed   boundary   stone.
Mahantappa asked accused No.1 as to why he had removed the  boundary  stone.
Accused No.1 told Mahantappa that  boundary  stone  shall  lie  there  only.
Mahantappa insisted that he will put the boundary stone at  the  place  from
where it was removed. Accused No.1-Pundappa  challenged  Mahantappa  to  put
boundary stone in its  original  place.  When  Mahantappa  was  putting  the
boundary stone in the pit, accused No.1-Pundappa assaulted  Mahantappa  with
the  axe  on  the  neck.  At  that  time  accused  No.2-Siddappa   assaulted
Mahantappa on his head with the stick. Accused No.1-Pundappa  had  assaulted
Mahantappa six to seven times with the axe on the neck and on the  head.  On
seeing the incident Laxmawwa (PW-7) shouted, hearing  his  shouting,  Charge
Witnesses,  CWs.13,  14  and  15  (CWs.  14  and  15  are  PW-8   and   PW-9
respectively) came there. When she was returning back to the house,  on  her
way she met CWs.-17 and 19 (PW-10 & PW-11) and she narrated the incident  to
them. She proceeded further and informed the incident to  Giriyavva  (PW-1),
mother of the Mahantappa. Giriyavva (PW-1) went to see her  son  Mahantappa,
who was brought to Yankanchi village  and  from  Yankanchi  village  he  was
shifted to Bagalkot. Mahantappa died in the Hospital at Bagalkot at  3  p.m.
Her statement was recorded by the Police.
      In her cross-examination she reiterated that she had seen the  alleged
incident. She stated that accused  No.1  was  found  sitting  in  his  land.
Mahantappa came there and took rounds in the land. Mahantappa  came  to  the
boundary by passing through his land. She was standing in the middle of  the
road. From there she heard the  exchange  of  words  and  saw  the  incident
taking place. She went near Mahantappa and had seen him. At that time,  both
the accused persons were present there. During the cross-examination at  one
stage she stated that she had not seen who had removed  the  boundary  stone
but reiterated that when Mahantappa wanted to put the boundary stone in  the
pit, accused No.1-Pundappa objected for it  and  quarrel  took  place.  When
Mahantappa was putting the stone  in  the  pit,  accused  No.1  and  2  have
assaulted Mahantappa.Mahantappa fell down on the ground  near  the  boundary
stone. Mahantappa sustained bleeding injuries and the blood  had  fallen  on
the ground and near the boundary stone. When she enquired  from  Mahantappa,
Mahantappa fell down, she shouted  and  when  she  left  the  spot,  accused
persons were still there. There is no reason to doubt  the  credibility  and
trustworthiness of the account given by this eye-witness.
14.   Sangappa (PW-8), in his deposition stated that he  along  with  CW-13-
Pundappa and PW-9, Chandrashekhar had gone to the  land  of  CW-24  Rangappa
Sannappa Gouli for ploughing the land.  At  about  9  a.m.  they  heard  the
shoutings. They had seen Mahantappa being assaulted  with  the  axe  on  his
neck and head, two to three times. They had seen another  person  assaulting
Mahantappa with the stick on his head.  When  they  went  there,  they  were
threatened by the accused  persons.  He  stated  that  Laxmavva  (PW-7)  was
present there at that time. Laxmavva (PW-7) went to the village and  on  the
way she met Bhimappa (PW-10) and   Ranganagouda  (PW-11)  and  narrated  the
incident to  them.  They  had  given  water  to  Mahantappa  and  thereafter
Mahantappa was shifted to Vankanchi  village  and  from  Yankanchi  village,
Mahantappa was shifted to Bagalkot for medical treatment.
      In his cross-examination he stated that  he  left  the  village  at  7
a.m.He went to the spot on hearing the shouting  and  at  the  spot  he  saw
Mahantappa falling down due to  assault.  Thereafter,  the  accused  persons
stood there for five minutes. When they enquired with  the  accused  persons
as to why they had assaulted Mahantappa, accused No.1-Pundappa went  towards
Sindal village taking the axe and the stick. Accused No.2-Siddappa  went  to
graze the sheeps.
15.   Chandrasekhar (PW-9) in  his  statement  stated  that  he  along  with
Sangappa (PW-8) and  CW-13 (Pundappa) had gone for ploughing the land of CW-
24 (Rangappa) on that day at about 9 a.m. Accused No.1 and 2  had  assaulted
Mahantappa and Mahantappa fell down. Accused No.1 had  assaulted  Mahantappa
with the axe and Accused No.2 had assaulted Mahantappa with stick.  Laxmavva
(PW-7) was present there at that time. Laxmavva (PW-7) went to  the  village
and informed about the incident. Giriyavva (PW-1)  and  the  villagers  came
there. Injured Mahantappa was shifted to the Hospital at Bagalkot at 2  p.m.
and finally Mahantappa succumbed to the injuries in the Hospital.
       Chandrashekar  (PW-9)  disputed  the  suggestion  that  the  land  of
Chandrashekar  (PW-9)  belonged  to  their  ancestors  previously.  He  also
disputed the suggestion that there was any dispute between  their  ancestors
and the accused persons regarding the land of the accused  persons.  In  his
cross-examination he reiterated that when they heard the exchange of  words,
the distance between them and those persons was about 10 feet.  By the  time
they went there Mahantappa was found lying on  the  ground.  After  reaching
the land, they have seen accused No.1 assaulting Mahantappa  with  the  axe.
He denied the suggestion that the scene of offence was not visible from  the
place where they were ploughing.
16.   Giriyavva (PW-1), mother of the  deceased,  is  the  complainant.  She
stated that on the fateful day her son, Mahantappa had gone  to  their  land
at about 7 a.m. for seeing the crop. The land  of  the  accused  persons  is
adjoining to their land. At about 10 a.m., she was present in her house.  At
that time, Laxmavva (PW-7) came and informed her  that  her  son  Mahantappa
was assaulted by accused No.1-Pundappa and accused No.2-Siddappa.  She  went
to the site of occurrence. Her son had sustained injuries on  the  head  and
on the back of the neck. Bhimappa (PW-10) and Ranganagouda (PW-11) had  come
to her land at that time. Bhimappa (PW-10)  had  brought  her  injured  son,
Mahantappa to the village Yankanchi. From Yankanchi  village  they  came  to
Mugalolli village and then the injured Mahantappa was  brought  to  Bagalkot
and admitted in the Government Hospital at Bagalkot. Mahantappa  died  at  3
p.m. in the Hospital at Bagalkot.
      In her cross-examination she stated that on that day  at  6  a.m.  her
husband left for Bagalkot. Laxmavva (PW-7)  came and reported  the  incident
to her in the house when she alone was present in  the  house.  At  about  9
a,m.  Laxmavva  reported  the  incident  to  her.  Luxmavva(PW-7)  did   not
accompany her to her land. She went to her land alone. Bhimappa (PW-10)  and
Ranganagouda (P-11) of their own accord came to her land  by  the  time  she
reached, Bhimappa (PW-10) and Ranganagouda (P-11) were present in her  land.
She further stated that except her. Bhimappa (PW-10)  and  Ranganagouda  (P-
11), none else were present in her land. At that time Mahantappa  was  in  a
position to talk.
17.   Bhimappa (PW-10) in his evidence, stated that he knows Giriyavva  (PW-
1), deceased Mahantappa, accused persons and also Ranganagouda  (PW-11).  He
further  stated  that  at  about  9.30  a.m.  Mahantappa  was  found  having
sustained injuries on his neck and stated that he covered  a  towel  on  the
injuries of Mahantappa and shifted  him  from  that  place.  The  towel  and
chaddar are M.Os.4 and 5.
18.   Coming to the evidence of Sangappa (PW-8)  and  Chandrasekhar  (PW-9),
we find that both of them have deposed that they  heard  the  shouting  when
they came near the place of incident, they  saw  accused  No.1  and  accused
No.2 assaulting  Mahantappa  with  axe  and  with  stick.  Even  though  the
witnesses were cross-examined at depth, no much evidence  were  elicited  to
discredit the testimony of Sangappa (PW-8) and Chandrasekhar (PW-9).  It  is
apparent in the evidence of Bhimappa (PW-10) and  Ranganagouda  (P-11)  that
they came to the land of one Rangappa Gouli for  ploughing  at  about  7  or
7.30 a.m. then they heard the screaming and rushed to the spot wherein  they
noticed the presence of Laxmavva (PW-7) who proceeded to  the  village  side
to inform the same to the complainant Giriyavva (PW-1).
19.   It is true that there are  certain  discrepancies  in  mentioning  the
time of the incident. Laxmavva (PW-7) stated that the  incident  took  place
at about 11 a.m. whereas, Sangappa(PW-8)  and  Chandrasekhar  (PW-9)  stated
that  the  incident  of  assault  took  place  at  9  or  9.30   a.m.   Such
discrepancies cannot be  a  ground  to  disbelieve  the  statements  of  the
witnesses if the difference is about one hour, as  the  villagers  generally
suggest the approximate time.
20.   The testimony of Laxmavva (PW-7), clearly indicates that  on  the  day
of the incident, she was grazing her sheep near the land of  Giriyavva  (PW-
1). According to her evidence, accused No.1-Pundappa Yankappa Pujari was  in
his land whereas, accused No.2 was grazing his sheep near  Durgamma  Temple.
Thereafter, the deceased Mahantappa came to his land, which is  adjacent  to
the land of accused  persons.  The  deceased  noticed  the  removal  of  the
boundary stone, When the deceased went to put the stone  in  the  same  pit,
there was some altercation between them regarding  fixing  of  the  boundary
stone at the very same place. It is  clear  from  her  evidence  that  while
Mahantappa was putting the stone in the pit, the accused No.1 assaulted  him
with axe over his neck and head  three  or  four  times.  As  a  result,  he
suffered with multiple  fracture  injuries  and  collapsed.  On  seeing  the
incident, Laxmavva (PW-7) shouted. Then Sangappa (PW-8), and  Chandrashekhar
(PW-9) who were ploughing the land at a distance of about  10  feet  in  the
land of one Rangappa, rushed to the spot. The testimony of  Laxmavva  (PW-7)
clearly indicates that it was accused No.1, who  inflicted  blows  with  the
axe on the neck and head  of  the  deceased  Mahantappa.  Apart  from  that,
though Laxmavva  (PW-7)  has  been  lengthily  cross-examined,  the  defence
failed to bring  out  some  evidence  that  would  lead  to  disbelieve  her
testimony with respect to the incident of assault.
21.   The testimony of Giriyavva (PW-1), mother of the  deceased  Mahantappa
shows that she knows the accused persons. She stated that at about 10  a.m.,
while she was in the house, Laxmavva (PW-7) came and informed her  that  her
son Mahantappa was assaulted by  accused  No.1  Pundappa  and  accused  No.2
Sidappa with axe and stick respectively. Further, she stated that  then  she
went to the land and saw Mahantappa lying on ground  with  injuries  on  the
head and back of the neck. She also stated that by that time  Bhimappa  (PW-
10), Ranganagouda (PW-11) also came to their land. Bhimappa (PW-10)  shifted
her son Mahantappa to  the  village  and  from  there,  he  was  brought  to
Bagalkot Hospital and admitted.
      In the cross-examination, she clearly stated that on  that  day  at  6
a.m. her husband had left for Bagalkot. Laxmavva (PW-7)  came  and  reported
the incident when she was alone in the house at about 10 a.m.
      From the testimony of the complainant, Giriyavva (PW-1)  it  is  clear
that when she was in the house  Laxmavva  (PW-7)  came  about  10  a.m.  and
informed her about the incident of assault  on  Mahantapp  by  accused  No.1
Pundappa. On a careful reading of the deposition of the complainant,  it  is
clear that Mahantappa left house early in the morning towards  the  land  to
see the crop after taking food. The fact that the deceased took food in  the
early morning is supported by  the  medical  evidence.   In  the  postmortem
report, Dr. Hanamant (PW-16) has  clearly  stated  that  stomach  is  intact
containing plenty of food particles more of rice. Therefore,  the  testimony
of Giriyavva (PW-1)  is  fully  corroborated  with  medical  evidenceof  Dr.
Hanamant (PW-16) in so far as the  deceased  Mahantappa  leaving  the  house
early in the morning.
22.    The  evidence  of  Dr.  Hanamant  (PW-16)  shows  that  he   examined
Mahantappa on 5th July, 1997 at 1 p.m. and found the following  six  incised
wounds:
“Incised wound of 5x2x2 cms. bone deep  in  left  parietal  scalp  are  with
blood clots.

Incised wound of  in  vertex  placed  long-itudinally  of  5x2x2  cms.  with
fracture of underlying skull bone with blood clots.

Incised wound behind the left ear of  7x3x2 cms. with  lacerate  of  muscles
underlying.

Incised wound in right part of occipital area of 5x3x2 cms with fracture  of
that  bone with blood clots.

Incised wound in right part of occipital  area  of  4x2x2  cms.  with  blood
clots and bone deep.

Incised wound in right parietal scalp area of 2x1x1 cms  with blood clots.

He issued the wound certificate as per Ex.P16.  It is also in evidence  that
on the death of Mahantappa, he conducted  the  post  mortem  and  found  the
following injuries.

Head is completely shaved and there were 7 stitched scalp wounds  are  found
all were opened and examined.

Cut lacerated wound  along  with  midline  in  vertex  of  5x1x1  cms.  with
depressed fracture of right parietal bone.

Cut lacerated wound placed obliquely in right parietal scalp area.

Cut lacerated wound of 5x2x1 cms. in upper part  of  occipital  area  placed
transversely.

Cut lacerated wound behind the left ear of  4x1x1 cms. placed obliquely.

At  the  hair  line  at  the  hape  of  neck  cut  lacerated  would   placed
transversely of 5x2x2 cms. bone deep.

Cut lacerated would in left part of occipital area of 5x2x1 ccms  bone  deep
placed obliquely.

Transverse cut lacerated would in right part of occipital  region  of  5x2x2
cms. with fracture of that bone.

Abrasion of 2x2 cms. over right malar region dark brown colour.

Abrasion on right forehead of 4x3 cms dark brown colour.”


      Thus from the nature of incised injuries found on  the  scalp,  it  is
clear that death of Mahantappa was due to injury to the brain  as  a  result
of wounds caused to the head probably by multiple hits by heavy sharp  edged
weapon and the same is marked as Ex.P-17. There is no dispute regarding  the
cause of death that the deceased met with homicidal death.
23.   The aforesaid medical evidence also  corroborates  the  statements  of
Laxmavva (PW-7), Sangappa (PW-8) and Chandrasekhar (PW-9).
24.   Normally, the ploughing of the land is being done in the  morning  and
in the evening till sun set. This is the  normal  practice.  Therefore,  the
presence  of  Sangappa  (PW-8)  and  Chandrasekhar  (PW-9)  witnessing   the
incident is proved by the testimony of Laxmavva (PW-7). Merely, due to  some
discrepancies in the statements of witnesses as to timings 1 & ½  hour  does
not go to the root of the case. The evidence  on  record,  particularly  the
testimonies  of  eye-witnesses  -Laxmavva  (PW-7),   Sangappa   (PW-8)   and
Chandrasekhaar (PW-9) are consistent,  trustworthy  and  fully  corroborates
with one another, without giving any room to doubt their credibility.  Their
evidence is also fully supported by the testimony  of  Bhimappa  (PW-10  and
Ranganagouda (PW-11), who went to the spot  after  coming  to  know  of  the
incident from Laxmavva (PW-7). All the above facts  directly  point  to  the
guilt of the accused No.1.
25.   We have noticed that there  exists  a  boundary  dispute  between  the
accused persons as well as the family of the deceased. This  is  clear  from
the testimony of Somappa (PW-2), who has categorically stated that 10 to  15
days prior to the incident, Chandrappa (father of the deceased) and  accused
persons approached them regarding the boundary dispute of  their  lands.  He
himself, Sonnappa (PW-3),CWs-23 and 24 had  advised  both  the  parties  and
fixed the boundaries of their lands. Thereafter, accused No.1  Pundappa  got
his land measured by a private surveyor. The private surveyor confirmed  the
boundary fixed by the elderly persons. It is in  the  evidence  of  Laxmavva
(PW-7) that while she was grazing the sheep near the land of Giriyavva  (PW-
1), there was altercation between the deceased Mahantappa and  accused  No.1
regarding fixing of the boundary stone. It is also seen  from  her  evidence
that the boundary stone was found  removed  by  accused  No.1  and  deceased
Mahantappa attempted to refix the stone at  the  same  place.  On  this  the
accused No.1 assaulted the deceased Mahantappa with axe over  his  head  and
back of the  neck  resulting  in  fracture,  which  had  led  to  his  death
subsequently in the Hospital.
26.   Considering the facts and circumstances of the  case  and  on  careful
examination of the act of the accused as proved by testimony  of  witnesses,
we are of the opinion that the said act of accused which resulted  in  death
of Mahantappa neither  comes  within  the  ambit  of  the  exceptions  under
Section 300 IPC nor within the scope of Section 304 IPC.     It  is  not  an
act done under grave and sudden provocation or in good faith or not an  act,
which he in  good  faith  believes  to  be  lawful  and  necessary  for  due
discharge in his duty or not  an  act  committed  without  premeditation  in
sudden fight. Therefore, the Appellate Court rightly held that  the  act  of
the accused No.1 thus falls  within  the  ingredients  of  Section  300  IPC
punishable under Section 302 IPC.
27.   We find no ground to interfere with the impugned judgment. In  absence
of any merit, the appeal is dismissed.
                                                         ……………………………………………J.
                                     (SUDHANSU JYOTI MUKHOPADHAYA)

                                                         ……………………………………………J.
                                        (RANJANA PRAKASH DESAI)

NEW DELHI,
JULY 2, 2014.

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