Yankappa & Ors. Vs.
State of Karnataka  INSC 2192 (16 December 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 68 OF 2002
Yankappa and Ors. ....Appellants Versus State of Karnataka ....Respondent
DR. ARIJIT PASAYAT,
in this appeal is to the judgment of the Division Bench of the Karnataka High
Court disposing of two criminal appeals i.e. one by accused Yankappa
(hereinafter described as `A1') who was convicted for offence punishable under
Section 302 read with Section 149 of the Indian Penal Code, 1860 (in short the
`IPC') and the other field by the State questioning conviction by the trial
Court for offence punishable under Section 304 Part I IPC read with Section 149
IPC in respect of A1 to A6.
Sentence of 3 years
is imposed. According to State, they should have beenconvicted also under
Section 302 read with Section 149 IPC. Appellants 7 to 15 were acquitted by the
trial Court which was challenged in the State's appeal.
the impugned judgment the High Court dismissed the appeal filed by Yankappa
(A1) but allowed the State's appeal to the extent that A2 to A8 were convicted
for offence under Section 302 read with Section 149 IPC.
They were sentenced
to undergo imprisonment for life. The acquittal in respect of rest as was
recorded by the trial Court was upheld by the High Court.
scenario giving rise to the trial of the accused persons is as follows:
The accused No.1
Yamanappa and 14 others were tried before the Trial Court on charges under
Sections 143, 147, 148 & 302 read with Section 149 IPC. The Trial Court
convicted the accused No.1 Yamanappa under Section 302 read with 149 IPC and
the accused Nos. 2 to 6 under Section 304 Part I read with 149 IPC. The rest of
the accused persons viz. the accused 7 to 15 were acquitted of all the charges
framed against them.
The accused No.1 was
sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- u/s 302
IPC and the accused Nos. 2 to 6 were sentenced to undergo RI for three years
and fine of Rs.10,000/- under Section 304 Part-I read with Section 149 IPC. The
accused No.1 filed an appeal against his conviction and sentence in Crl. Appeal
No.315/97. The State also preferred an appeal in Crl. Appeal No.553/97 against
an order of acquittal of the accused under Section 302 read with Section 149
IPC. The accused Nos.2 to 6 did not prefer any appeal against their conviction
The deceased is one
Mahadevappa aged about 30 years. He was killed on the Musky-Mudgal Road on
28.10.95 at about 8.30 am in the morning. Smt Mallamma (PW-1) is the wife of
the deceased. The deceased Mahadevappa along with his wife Mallamma PW-1 and
mother CW-5 had been residing in the house situated in his land; on the
outskirts of Bailagudda village.
Pampanna (PW-2) and
Erappa (PW-3) are the brothers of the deceased and they were both residing in
the village habitation of Bailagudda. The land of the deceased Mahadevappa was
adjoining the land of the accused No.1 Yamanappa. That is to say, they were
possessing contiguous lands.
had seriously objected to the accused No.1 Yamanappa digging a borewell near
his own borewell and thereafter, the differences arose between the family of
the accused No.1 Yamanappa and the family of the deceased. Since then, there
used to be some kind of friction between the members of their two families.
While this was so, on the evening of 27.10.95, the cattles belonging to the
accused No.1 Yamanappa entered into the land of the deceased Mahadevappa for
the purpose of grazing and in that regard, there was a verbal quarrel between
the wife of the deceased (PW1) and the wife of the accused No.1 namely
This incident was
reported by PW-1 to the deceased on his return to the house. Thereafter, on the
following morning, at about 8.30 am, after giving the grains (Bajra) to one
Muniyappa (PW-4) who had come to the house of the deceased to collect the
grains, the deceased Mahadevappa was proceeding along with PW-4 from his house
in order to go to Musky, with the intention to lodge a complaint with the
police in respect of the incident, which occurred on the previous day evening.
When the deceased Mahadevappa was so proceeding along the road near a school,
all the accused persons came in a group, armed with various weapons like clubs,
axes and spears and after picking up a quarrel with the deceased, they
committed assault on, him. Accused No.1 Yamanappa stabbed the deceased with a
spear. The accused No.6 dealt axe blows on the deceased. The others viz.
accused No.4 Kidiappa, accused No.7 Ayappa and accused No.8 Hanumantha
assaulted the deceased with clubs. Thereafter, the women accused No. 13
Sharanamma, accused No. 11 Garudamma, accused No.10 Hanumavva, accused No.12
Fakiravva and accused N0.14 Shivamma dropped stones on the deceased and so also
one Kumarappa brother of Sharanamma and son-in-law of Durgappa. As a result of
the assault committed by these accused, the deceased had sustained bleeding
injuries on his head and legs. The complainant Erappa (PW-3) and Pampanna (PW-
2), the brothers of the deceased, Mallamma (PW-1), the wife of the deceased and
one Shekara Gowda (PW-6) had intervened to rescue the deceased. But they were
not successful in preventing the accused from committing the assault on the
deceased. Thereafter, before the deceased Mahadevappa could be shifted to the
hospital for treatment, he died on the spot. The PSI PW-17 who was on village
rounds came to the spot at about 11 am and recorded the statement of Erappa
(PW-3) which is as per Ex.P.1 and treated the same as the FIR. On the basis of
such FIR Ex.P.1, the investigation was taken up and on completion of the
investigation, the charge sheet was laid against the 15 accused persons. At the
trial, the prosecution had examined PWs 1 to 21. Of them, PWs 1 to 4 & 6
claimed to be eye witnesses to the occurrence. PW-5 was also examined as an eye
witness, but he did not support the prosecution case in its entirety. PWs 7
& 8 had come to the spot immediately after the assault and they were informed
of the occurrence by PW-1. PW-9 is a witness for the inquest proceedings held
on the dead body of the deceased and the spot panchanama conducted over the
place of incident as per Exs P.6 & P.7.
completion of investigation, charge sheet was filed. As the accused persons
pleaded innocence, trial was held. The trial Court, as noted above, held A1 to
A6 guilty of different offences as noted above. A7 to A15 were acquitted. The
High Court found that the conviction of A1 was in order. The conviction of A2
to A6 was made under Section 302 read with Section 149 IPC. Similar was the
case in respect of A7 and A8 who were acquitted by the trial Court.
High Court gave the following reasons for its conclusions:
our view the acquittal of the Accused Nos.9 to 15 is concerned warrants no
interference in the appeal filed by the State. In so far as the other accused
viz., Accused Nos.1 to 8 are concerned, there is consistent evidence of all the
eye-witnesses, whose presence at the spot cannot be doubted, that they
conjointly assaulted the deceased and caused his death. It is no doubt true
that a reading of the evidence of PW-2 alongwith the evidence of PW-4 would
create some doubt about the presence of PW-2 at the time of the actual occurrence.
But there is absolutely no reason to doubt the presence of PWs.1, 3, 4 and 6 at
the spot when the incident in question had occurred. The evidence against the
Accused Nos.l to 8 is overwhelming. It consists of several eye-witnesses who
saw the assault in the broad day light and who knew all these accused persons.
There is no doubt that all these accused persons A1 to A8 joined in the assault
committed on the deceased when he was near the gaddige with the various weapons
and they inflicted such serious injuries to the deceased that he had died on
the spot. They must have known that at the least, they were causing injuries,
which were likely to cause death and if death has resulted, they were guilty of
murder. In such cases, it is immaterial by 6 whose weapon the fatal injury is
inflicted. In our opinion all these 8 accused persons Al to A8 ought to have
been convicted for murder and if they have been so convicted of murder, we
would not have interfered. It has to be stated that when several persons
jointly attack the deceased with various weapons resulting in the death of the
deceased, they are all equally guilty even though it may not be possible to
prove which of them actually inflicted the fatal blow. In the instant case, the
learned trial Judge was not justified in not convicting the Accused Nos. l to 8
under Section 302 IPC either with the aid of Section 149 of with Section 34
IPC. To that extent, the order of the trial Court needs to be modified.
We are aware that we
are interfering with the order of acquittal under Section 302 IPC, but we think
interference in this case is imperative and hesitation to interference will
lead to a miscarriage of justice."
support of the appeal learned counsel for the appellants submitted that the
trial Court should not have found any of the accused persons guilty.
The evidence of PWs.
1, 3, 4 and 6 should not have been relied upon particularly when PW5 did not
support the prosecution and PW2 was disbelieved by the trial Court. It is also
submitted that there is no reason to convict A7 and A8 who were acquitted by
the trial Court.
counsel for the respondent supported the judgment of the High Court.
find that the reasoning indicated by the High Court as quoted above suffers
from no infirmity so far A1 to A6 are concerned. The trial Court had committed
grave error in holding that Section 302 was not applicable to them. Therefore,
the High Court has rightly convicted each A1 to A6 in terms of Section 302 read
with Section 149 IPC. So far as appellants A7 and A8 are concerned, the
reasoning indicated by the trial Court for acquitting them does not suffer from
any infirmity. Evidence of PW-1 and PW-3 relate to only A1 to A6. They have not
ascribed any role to A7 and A8.
being so, while upholding the judgment of the High Court we allow the appeal so
far as it relates to A7 and A8 i.e. the appellants. A1 i.e. Yankappa has not
questioned correctness of the judgment. The appellants Ayyapa and Hanumantha
are acquitted. They were released on bail pursuant to the order dated
18.2.2002. The bail bonds shall stand discharged.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)