Shanthamallappa Dhule & ANR Vs. State of Karnataka  INSC 659 (12
NANAVATI, S. P. KURDUKAR
J This appeal by special leave is directed against the judgment of the
Karnataka High Court in Criminal Appeal No. 555 of 1980 whereby it confirmed
the conviction of the appellants under Section 302 read with section 34 IPC
recorded by the Sessions Judge, Bijapur in Sessions Case No. 29/80.
prosecution case was that on 3.12.1979 , at about 8.30 or 9.00 a.m., while deceased Baburao and his son Sharanappa were
proceeding from their house to their field carrying food for their father who
was staying in the field and when they were passing through the field of Suleman,
the appellants along with three others assaulted Baburao.
No. 2 gave a blow with an axe on the neck of the deceased as a result of which
he fell down and soon thereafter died. On seeing this assault on his father Sharanappa,
who was then a child of about 5 years, ran away towards the village. P.W.4 Bhimashankar,
who was returning from his field to the village, saw this assault on the
deceased who was distantly related to him. He raised a cry whereupon the
accused ran away. he went near Baburao and found that he was already dead. He
started weeping and proceeded further towards the village. On the way he met Irappa
(PW5). Irappa asked him why he was weeping P.W.4 told him that accused persons
had killed Baburao. On the way he also met one Shivagondappa P.W. 6 and
informed him also about the assault on the deceased by the accused. He
thereafter went to the house of his uncle Guralingappa P.W.8 and informed him
about the incident. He then along with other relatives went back to the place
where Baburao was lying dead. P.W. 3 father of the deceased then requested P.W.
8 to go and lodge a complaint with the police. He reached Police Station at Indi
situated 30 Km. away from that village and lodged his complaint. After
completing the investigation the police charge sheeted all the five accused. The
Trial Court convicted appellant Nos. 1 and 2 only for the offence punishable
under section 302 read with section 34 IPC. The other accused were acquitted.
In convicting the appellants, the Trial Court relied upon the evidence of P.W.4
Bhimashankar, which received corroboration from the evidence of P.W.5 Irappa
and P.W.6 Shivagondappa.
High Court after reappreciating the evidence found that the evidence of P.W.4
was quite reliable as no infirmity appeared in his evidence. The High Court
also found that his evidence was fully corroborated by the evidence of P.W.6 It
therefore, confirmed the conviction and dismissed the appeal.
is contended by the learned counsel for the appellants is that the evidence of
P.W.4 ought not to have been relied upon as there was enmity between the
deceased and the accused and this witness was the cousin of the deceased. He
also submitted that the prosecution has failed to explain how the burn
injuries, noticed by the doctor who performed the post mortem, were received by
was delay in lodging the First Information Report and starting the
investigation. Therefore, the appellants should have been given the benefit of
doubt. We find no substance in any of these contentions. Though P.W.4 was the
cousin of the deceased it was not even suggested to him in his cross
examination that he had any reason to falsely involve the accused. We do not
find any material on record on the basis of which it can be said that he had
shared the enmity of the deceased with the accused. Significantly, his presence
at the scene of offence was not even challenged by the accused.
evidence discloses that immediately after seeing the assault on the deceased he
went to the village and informed those who met him on the way about causing of
the death of the deceased by the accused. We do not find any infirmity in his
evidence. The courts below were, therefore, fully justified in placing reliance
upon his evidence. Once his evidence is believed it establishes that appellant
No. 2 had given an axe blow on the neck of the deceased. It is no doubt true
that no blow was given by appellant No. 1 to the deceased. Possibly that became
unnecessary as after receiving the first blow the deceased had fallen down on
the ground. Appellant No. 1 with appellant No.2 had gone together and assaulted
the deceased. Appellant No. 1 had also raised his axe to assault the deceased.
Therefore, his conviction under section 302 read with section 34 IPC cannot be
said to be improper. In view of the distance between the place where the in
evidence took place and the police station it cannot be said that there was any
delay either in lodging the information or in starting the investigation. As
regards the burn marks noticed by Dr. Bagali (P.W.9) , Who had conducted the
post mortem examination and who was declared hostile, no such injuries were
noted while inquest panchnama was prepared and no question in that behalf was
put to P.W.1 Basanna who had acted as a panch witness.
as deposed by the doctor, they were post mortem injuries. Therefore, that
circumstance cannot be considered as sufficient to create any doubt regarding
veracity of P.W.4.
appeal is, therefore, dismissed. Bail bonds are ordered to be cancelled.