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PETITIONER: VISHWANATH SHANTHAMALLAPPA DHULE & ANR.

       Vs.

RESPONDENT: STATE OF KARNATAKA

DATE OF JUDGMENT:       12/08/1997

BENCH: G. T. NANAVATI, S. P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, 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.      The 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. Appellant 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

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evidence of P.W.4 Bhimashankar, which received corroboration from the evidence of P.W.5 Irappa and P.W.6 Shivagondappa.      The 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.      What 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 the deceased. There 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. The 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. Moreover 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.      The appeal  is, therefore,  dismissed. Bail  bonds  are ordered to be cancelled.