REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 68 OF 2002

Yankappa and Ors.         ….Appellants

Versus

State of Karnataka ….Respondent

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Challenge 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 been

convicted 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.

2. By 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.

3. Factual 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

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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 and sentence.

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.

Deceased  Mahadevappa  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

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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 Sharanamma.

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

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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.  

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4. After  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.

5. The High Court gave the following reasons for its conclusions:

“Therefore in 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

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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.”

6. In 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.

7. Learned counsel  for  the  respondent  supported  the  judgment  of  the

High Court.               

8. We 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

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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.   

9. That 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.               

10. The appeal is allowed to the aforesaid extent.

             ………….....................................J.

(Dr. ARIJIT PASAYAT)              

         ………….……….........................J.

        (Dr. MUKUNDAKAM SHARMA) New Delhi, December 16, 2008

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