Vs. State of Karnataka  INSC 477 (4 November 1993)
K. JAYACHANDRA (J) REDDY, K. JAYACHANDRA (J) RAY, G.N. (J) CITATION:
1994 AIR 963 1994 SCC Supl. (2) 235 1993 SCALE (4)477
This appeal has been filed by three original convicted accused 1, 3 and 6
namely, Panchaiah, Shankariah and Khan Sab. During the pendency of the appeal,
the second appellant (original accused 3) died. Therefore, we are concerned
with the case of the remaining appellants. These appellants along with three
others were tried for offences punishable under Section 324 and Section 304
read with Section 34 IPC for causing injuries to PW 5 and for causing the death
of Devendrappa. The case mainly rested on the evidence of PW 5 and PW 8 out of whom
PW 5 is the injured witness. The trial court however acquitted all the six.
State preferred an appeal and the Division Bench of the High Court while
acquitting the three other accused A-2, A-4 and A-5 convicted the appellants
under Sections 302/34 IPC and 324 read with Section 34 IPC for causing death
and injuries to PW 5 and sentenced each of them to undergo life imprisonment
and simple imprisonment for six months respectively. The sentences are directed
to run concurrently. Hence the present appeal under Section 379 CrPC read with
Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
prosecution case is as follows. The accused, the material witnesses and the
deceased belonged to Village Mylar in Bellary District, Karnataka. A-1 to A-3
are brothers. They were living jointly. They were running a hotel at the bus
stand. A-4 to A-6 are brothers. They had a sister by name Peeravva. The
deceased was the husband of PW 11. PW 10 is the cousin brother of the deceased Devendrappa.
The father of the deceased made a complaint two years prior to the present
occurrence against the deceased and seven others for having outraged the
modesty of Peeravva, sister of A-4 to A-6. The charge-sheet was filed against
the accused but they were acquitted. As a result there was a bitter enmity
between the two groups.
under Section 110 CrPC were also registered against the deceased and the
brothers of A-1 to A-3 made a complaint alleging theft of some articles against
the deceased and in respect of' tile same, charge-sheet was also filed. While
on May 4, 1979 namely, the date of occurrence Gurunanjaiah
the brother of A-1 to A-3 made a complaint against the deceased and six others
under Sections 147 and 436. At about 8.00 a.m. on May 4, 1979 the deceased along with PW 5 and PW
8 went to his land two miles away from the village to plough the land with a
tractor. They ploughed the land till about 11.00 a.m. Thereafter they went to a Neem tree and sat in the shade. They took their
the rest at about 12.30 or 1.00 p.m. PW 5
and PW 8 got up on hearing some noise. They saw A-1 to A-6 coming there.
was armed with cycle chain and A-2 to A-6 were having clubs in their hands.
Accused abused the deceased in vulgar language and thereupon A-1 assaulted the
deceased on his head with cycle chain. The deceased got up and sat in a
frightened mood. Thereafter PW 5 and PW 8 rescued the deceased. Accused
threatened PW 8. Thereafter A-1 to A-6 assaulted the deceased with clubs and
A-1 with a cycle chain on various parts of the body. The accused after
inflicting these injuries left the scene of occurrence. PW 5 and PW 8 found the
deceased lying injured and unconscious, lifted him to the village. The mother
of the deceased and PW 10 were informed about the occurrence by PW 5.
Thereafter PWs 5, 8 and 10 carried the deceased to the hospital in the tractor.
a Compounder at the Primary Health Centre, Holalu informed PW 5 and others that
the doctor had gone to Bellary. Thereafter PW 5 and others
searched for a 237 private doctor at Holalu and they could not find him. PW 5
and others then proceeded to Hirehadagali. On the way the deceased succumbed to
the injuries. PW 5 and others carried the body of the deceased to the police
station at Hirehadagali and informed PW 19, the Sub-Inspector.
PW 19 asked PW 5 to give a written complaint.
PW 5 got a report of the occurrence written and presented the same to the
Sub-Inspector, who registered the case. The next morning PW 5 was sent for
medical examination and inquest was held over the dead body and postmortem was
conducted by doctor, PW 6. He opined that the injuries to the head which caused
internal damage, caused death as a result of shock due to haemorrhage. On PW 5
the doctor found simple injuries. The accused were arrested and after
completion of the investigation charge-sheet was laid.
prosecution examined 20 witnesses. The accused pleaded not guilty and stated
that they were falsely implicated.
trial court examined the evidence of PW 5 and PW 8 and pointed out that they
have given an exaggerated version and that the medical evidence show that the
occurrence could have taken place at a different time and it was not safe to
rely on the evidence of Gurunanjaiah. In that view of the matter all the
accused were acquitted. The High Court once again examined the evidence of
these two eyewitnesses in great detail and was prepared to accept their
evidence. So far as A-1, A-3 and A-6 are concerned since specific overt acts
were attributed to them the High Court confirmed their acquittal.
Javali, the learned Senior Counsel submits that evidence of these two witnesses
had been discarded in respect of three accused. It would therefore be highly
unsafe to convict the appellant on the same evidence. His further submission is
that the fact that PW 5 was examined by the doctor at a belated stage makes his
evidence suspicious. He also invited our attention to some of the admissions
made by PW 5, the injured witness in his cross- examination where he has stated
that all the accused beat the deceased indiscriminately and according to the
learned counsel if that version is to be believed, there would have been number
of injuries but the doctor found only six injuries on the deceased and out of
them there were five abrasions. Therefore the evidence of PW 5 is contrary to
the medical evidence. The learned counsel also pointed out that the occurrence
took place at about 1.00
p.m. but the report
was given at 7.00 p.m. and therefore the consultations and
the resultant false implication cannot be ruled out in the case. In any event,
according to the learned counsel the view taken by the trial court is quite
reasonable and the High Court erred in interfering in an appeal against
mentioned above PW 5 is an injured witness. The doctor who examined him found
as many as six injuries. The first injury was on the back at the level of 9th
and 10th vertebrae measuring 22 cms x 5 cms. The second injury again was on the
left scapula measuring 24 cms x 5 cms. The third injury was also at the same
place measuring 15 cms x 5 cms.
other three injuries were on the right clavicle shoulder and knee. The doctor
opined that these injuries could be caused by a cycle chain and the other with
the medical evidence corroborates the version of PW 5 when he stated that he
was beaten by the cycle chain and clubs. Therefore he having received injuries
during the same transaction cannot be doubted and his presence at the scene of
occurrence is established. No doubt in the cross- examination he stated that
all the accused beaten him indiscriminately. It may be exaggeration but
specific 238 overt acts are attributed to A-1, A-3 and A-6. The presence of
injuries on a witness confirms his presence during the occurrence. That being
so, his evidence assumes great importance. Even if there are some
exaggerations, the Court has to examine the same and scrutinise the evidence.
Having gone through the evidence and the reasoning of the trial court we are of
the view that it erred in discarding the evidence of PW 5 in toto. Without
being present and without having witnessed the occurrence, PW 5 could not have
given the same version in the earliest report because of mere motive or out of
consultation. The so-called exaggeration or discrepancies pointed out in their
evidence both by the counsel as well as by the trial court in our view are not
material and would not affect the veracity of the witness.
However, having regard to the background, the existing enmity his evidence has
to be carefully scrutinized. Having gone through his evidence, we are in
agreement with the High Court that A-1, A-3 and A-6 to whom specific overt acts
were attributed must have participated in the occurrence. PW 5's evidence is
further corroborated by the evidence of PW 8 whose name is also mentioned in
the FIR. The version given by these two witnesses regarding the part played by
the appellants is consistent and is amply corroborated by the medical evidence.
We are of the confirmed view that the reasons given by the trial court are
highly unsound and erroneous. Therefore the view taken by the High Court in
these circumstances is correct and sound. So far as the nature of the
occurrence is concerned, we are of the view that a case punishable under
Section 302 read with Section 34 is not made out. Undoubtedly there was bitter
enmity between the two groups. If really the intention of the assailants
whoever they may be was to cause the death of deceased they would have been
armed with deadly weapons or would have inflicted more serious injuries. The
doctor, PW 6 who conducted the postmortem noticed on the dead body only six
injuries. The first injury was lacerated wound on the middle of the head
measuring 2 cms x 1 cm and bone deep.
second injury, a bruise (exhymosis) black coloured on the antero laternal
aspect of the right arm extending from the right shoulder joint aspect
measuring 23 cms x 9 cms.
third injury was again a bruise (exhymosis) black coloured on the interior
aspect of the left upper arm up to the left elbow joint measuring 10 cms x 9 cms.
The fourth injury was an abrasion black colour on the left patella measuring 3 cms
x 2 cms. The fifth injury was also abrasion black colour just middle to the
injury No. 4. The last injury is again only an abrasion on the left side of the
abdomen at the level of the unbelious 6 cms. The doctor opined that there was extravasation
of blood just below the head injury No. 1. The doctor opined that the death was
a result of shock and haemorrhage. He further stated that injury to the brain
and the vessels was due to external injury No. 1. Injuries 1, 4 and 5 would be
caused by a hit with a cycle chain. The medical evidence thus shows that there
is only one injury which was serious on the head and the other injuries were
only burised abrasions. If really as contended by the learned counsel for the
State that the intention of the appellant was to cause death, they would have
inflicted more serious injuries. We find only one injury on the head which
unfortunately resulted in the extravasation of blood causing injury to the
brain. Under these circumstances it cannot be said that they had common
intention to cause the death of the deceased. However the injuries inflicted
would show that 239 they had only knowledge in which case they are punishable
under Section 304 Part 11 read with Section 34 IPC.
the result we confirm the convictions of the two appellants Panchaiah and Khan Sab
under Sections 324/34 IPC and the sentence of six months awarded thereunder.
Their convictions under Section 302 read with Section 34 and the sentence of
imprisonment for life thereunder are set aside.
they are convicted under Section 304 Part 11 read with Section 34 IPC and are
sentenced to five years' rigorous imprisonment. The appeal is partly allowed to
the extent indicated above. So far as Shankariah is concerned, the appeal