Vs. State of Karnataka  INSC 280 (12 May 1993)
S.R. (J) Pandian, S.R. (J) Ray, G.N. (J)
1994 SCC Supl. (1) 304
appeal is directed by the above two appellants who are brothers. These two
appellants along with their father who was arrayed as accused I were called
upon to answer the charges punishable under Section 447, 326, 302 read with
Section 34 IPC on the allegations that on September 24, 1977 at about 11.15
p.m. at Sevalagi village committed criminal trespass on the land belonging to
the deceased, Jinnappa Dadu and that in furtherance of the common intention,
they attacked Jinnappa with lethal weapons and caused several injuries to which
injuries Jinnappa succumbed on September 30, 1977 at 3.50 a.m. The
investigating officer, PW 21 recorded the statement of the deceased in the
hospital on the night of September 24/25, 1977. On the basis of Ex. P- 32, a
case was registered, Ex. P-23. The Investigating Officer after inspecting the scene
of occurrence, recorded the statements of the witnesses and arrested these two
appellants on September
26, 1977 and recorded
their statements. In pursuance of the statement given by the first appellant,
MOs 1, 2, 1 (1989) 4 SCC 397: 1989 SCC (L&S) 653: (1989) 1 1 ATC 857:
(1989) 3 SCR 1010 305 9, 10 and 11 were recovered under Ex. P-18, and in
pursuance of the confessional statement given by the second appellant, MOs 14
and 15 were recovered under Ex. P- 1 9.
to the prosecution, the occurrence was witnessed by PWs 7, 8 and 9 of whom PW 7
is an injured witness. It is stated by the prosecution that PW 7 was sleeping
by the side of the deceased in the field where the deceased had penned his
sheep with the assistance of the shepherds, namely PWs 7 to 9.
completing the investigation, the Investigating Officer laid the charge-sheet
against all the three accused.
accused denied the offence when examined under Section 313 CrPC. The trial
court not accepting the evidence of PWs 7 to 9 and the recoveries made by the
I.O. as well as the veracity of the allegeddying declaration Ex. PW-22,
acquitted all the three accused.
being aggrieved by the order of acquittal, the State preferred an appealbefore
the High Court. The High Court on reevaluating the evidence, convicted these
two appellants but acquitted their father by giving him the benefit of doubt.
Hence the present appeal.
counsel who has filed this appeal has since been elevated to the Bench, these
two appellants stood unrepresented. Thereafter, the matter was referred to the
Supreme Court Legal Aid Board.
are happy that Mr U.R. Lalit, learned senior counsel has offered his assistance
to the Court appearing on behalf of the appellants.
after taking us through the recorded evidence and the impugned judgment
challenged the finding of the court below on two grounds. According to him, the
evidence is inadequate and insufficient to warrant the conviction against the
appellants and secondly if the evidence even is accepted the offence would not
amount to one punishable under Section 302 read with Section 34 IPC but would
be only under Section 326 read with Section 34 IPC.
may be noted, in this connection, that the High Court convicted them only under
Section 302 read with Section 34 IPC. The occurrence has taken place on a
moonlit night. Admittedly, PWs 8 and 9 did not sleep near the deceased but they
came to the scene of occurrence after hearing the screams of the deceased and
PW 7. As already stated, PW 7 is a star witness whose evidence establishes the
presence of PW 7 at the scene of occurrence. Therefore, even if the evidence of
PWs 8 and 9 is eschewed, we can safely rely upon the evidence of PW 7 which
the statement recorded by PW 21 in the hospital.
we have no hesitation in accepting the finding of the High Court that the
appellants participated in the occurrence and they are the perpetrators of the
next question that comes up for our consideration is what is the nature of the
offence that the appellants have committed. The Medical Officer who conducted
autopsy on the dead body of the deceased has opined that the death was as a
result of septicaemia secondary to injuries and peritonitis. As we have
indicated above, the deceased died after five days of the occurrence in the
hospital. On an overall scrutiny of the facts and circumstances of the case coupledwith
the opinion of the Medical Officer, we are of the view that the offencewould be
one punishable under Section 326 read with Section 34 IPC.
the result, we set aside the conviction under Section 302 read with Section34
IPC and the sentence of imprisonment for life imposed therefore on 306 each of
the appellants. Instead we convict them under Section 326 read with Section 34
IPC and sentence each of the appellants to undergo rigorous imprisonment for a
period of three years. With the above modification in the conviction and
sentence, the appeal is dismissed.
place on record our appreciation of the assistance rendered by the learnedsenior
counsel, Shri U.R. Lalit as amicus curiae along with Mrs R.S. Hegde, Advocate-on-record.