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.
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.
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
REPORTABLEIN 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.
