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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 165 OF 2004

SEENA @ SRINIVASA  … APPELLANT

VERSUS

STATE OF KARNATAKA             … RESPONDENTS

WITH

CRIMINAL APPEAL NOS. 166-167 OF 2004

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA,J.

These  appeals  are  directed  against  the  judgment  dated  9th  

December, 2002 passed by the High Court of Karnataka at Bangalore  

in Criminal Appeal No.326/99 c/w Criminal Appeal No. 310/99. By  

the impugned judgment High Court reversed the judgment of Addl.  

District and Sessions Judge, Bangalore Rural District, Bangalore in  

S.C. No. 42/88 by acquitting accused no.3 who stood charged under  

Section 302/34 IPC and partly allowed the appeal filed by accused  

no. 2 by modifying the conviction from offence punishable under  

Section 302 IPC to the offence under Section 326 IPC.

2. Criminal  Appeal  No.  165  of  2004  has  been  filed  by  the  

appellant-Seena @ Srinivasa (accused no.2) against the order of  

conviction and sentence under Section 326 IPC. Criminal Appeal Nos.  

166-167 of 2004 have been preferred by the State of Karnataka; (i)  

against the acquittal of accused no. 3-Ramanna @ Rama and (ii)  

against  modifying  the  conviction  of  accused  no.  2   Seena  @  

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Srinivasa from the offence punishable under Section  302 IPC to  

offence punishable under Section 326 IPC.

3. Original accused no. 1 Chaluvaiah @ Chaluva and accused no. 3-

Ramanna @ Rama are brothers while accused no. 2-Seena @ Srinivasa  

is the sister's son of accused no. 1 and 3. While the accused no. 2  

is the resident of  Yeshwanthapura, Bangalore,  accused no. 1 and 3  

are the residents of  Chinigappanapalya, Solur Hobli Magadi Taluk,  

Bangalore District.

4. Accused no. 1 died during the trial and, therefore, only the  

accused nos. 2 and 3 were tried for the offence under Sections 302  

and 307 read with 34 IPC.

5. The case of the prosecution is that on 22nd January, 1988 PW.1-

Channarayappa decided to inform police about the threats caused to  

them by accused nos. 1,2 and 3.  Therefore, he sent his brother  

Channegowda  (deceased)  along  with  Venkateshaiah  CW  14 to  Kudur  

Police  Station  to  lodge  report.  Channegouda  along  with  

Venkateshaiah  reached  police  station  and  after  giving  report,  

returned to the village near Hudukunte at around 12 noon.   At 1.00  

p.m.  Channegowda,  the  deceased  accompanied  CW1  Channarappa  to  

graze cattle and donkeys to a place called Mandekal Bayalu.  They  

left  cattle  for  grazing  and  Channegowda  sat  on  a  rock.   At  

1.00p.m., the accused nos. 1, 2 and 3 were seen going to the spot  

where Channegowda was sitting, armed with choppers. According to  

the prosecution accused nos. 1, 2 and 3 proceeded to that spot in  

Mandekal  where Channegowda  was sitting,  accused no.3 lifted the  

chopper and hit on the left leg of Channegowda causing injury  

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above the knee and below the  knee. Similarly, accused no. 1 raised  

chopper  to  hit  the  deceased-Channegowda  on  his  head.    The  

deceased raised his hand towards the blow, but the blow fell on the  

left hand.  At the same time, accused no. 3 hit on the right leg of  

the deceased-Channegowda with chopper. Screaming of the deceased-

Channegowda attracted the attention of CW1-Channarayappa.

6. Further case of prosecution is that CW1-Channarayappa rushed  

towards  his  brother  deceased-Channegowda  but  he  was  chased  by  

accused  nos.  1  and  2.  They  chased  him  upto  the  land  of  

Gangadharappa. Gangadharappa -CW.3 saw the accused nos. 1 and 2  

chasing  Channayarappa  and  asked  him  the  reason.  Channarayappa  

rushed  towards  the  land  of  Ganagadharappa  CW.3.  Accused  no.  1  

started  pelting  stones  on  Channarayappa  causing  injuries.  

Ganagadharappa advised accused nos. 1 and 2 to go away.   He saw  

both the accused going with choppers.  After accused nos. 1 and 2  

left the spot,  Channarayappa rushed to his house to bring water to  

be given to his brother deceased-Channegowda, when he returned to  

the spot, Channegowda had already succumbed to the injuries.    He  

returned to the village and informed the residents of the village  

whose name is also described as Channegowda -CW.12 and Chandrapa  

-CW.13. He requested them to go and lodge report at the Nelamangala  

Police Station and they alongwith another person informed about the  

incident to police. At about 10.00 or 10.30p.m.  police officials  

came to the spot Chanarayappa and others submitted the report to  

the  Sub-Inspector of Police Sidegowda who visited at the place of  

occurrence. He received  the report and sent it to Kudur Police  

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Station to P.C. 1138 Nagaraj Gowda for being registered it as an  

FIR. At 11.30p.m.  the  Sub-Inspector of Nelamangala Police was  

informed and both of them searched for accused named in the report.

7. On 22nd January, 1988 the P.S.I. D.S. Siddegwoda-CW.17 continued  

investigation  and  prepared  spot  mahazar  on  next  day  between  

6.45a.m. to 7.30 a.m. in the presence of panch witnesses by name  

Krishnappa,  Kempahonnegwda, Muddeveeraiah and Shivanna.  He also  

conducted inquest on the dead body in the presence of witnesses.  

He noticed injuries on the legs, left-hand and other parts of the  

body. He seized blood-stained mud and sample mud from the spot. He  

also  saw  a  sickle  lying  on  the  spot  and  seized  the  same.  

Chanarayappa was also sent for medical examination with a memo.  

After autopsy, clothes were seized.

8. On  22nd January,  1988,  Circle  Inspector  visited  Hudkunte  

village and examined Channarayappa, Govindaiah and Gangadharapa and  

others.  He recorded statement. He deputed the staff to search and  

after a long search on 9th March, 1988, the CI received information  

that the accused were hiding at a particular place.  He visited  

R.M.C. Yard, Yeshwanthpura. On 10th March, 1988, at 3.30 a.m. he  

arrested the accused no. 1 Chaluvaiah from the house of his aunt.  

He  interrogated  him.  Accused  no.1  revealed  the  whereabouts  of  

accused nos. 2 and 3. Thus, he rushed to K.G. Circle in Bangalore  

and noticed that on the pedestrian cross bridge on the Kempegowda  

road near the circle, accused no.2 Seena and accused no.3 Ramanna  

were sleeping. They were apprehended. They were brought to Solur  

outpost and kept them in safe custody.  They were interrogated and  

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they  gave  voluntary  statement  disclosing  place  where  they  have  

hidden the weapons used in the assault and their clothes. Accused  

no.  1  gave  voluntary  statements  as  per  Ex.P.1  and  Ex.P.2  

respectively. Accused no.3 gave voluntary statement as per Ex.P-3.  

They were taken to village Hudukunte. In the presence of witnesses  

by  name  Shivashakaraiah,  Muddaveeraiah,  Marirangaiah  and  

Puttamallaiah, he guided police to a particular place and from  

behind bushes, he took out a chopper and produced the same which  

is marked MO.8. Mahazar was prepared vide Ex.P.11. Accused no.2  

gave similar statement and guided the police to another spot from  

where one more chopper was recovered which is marked at MO.6 and  

the same were seized under Ex.P-12. Seena also gave a voluntary  

statement which also lead to recovery of another chopper.

9. On the basis of eye witness account given by CW1 Channarayapa,  

CW.3-Gangadharappa,  Shivanna,  Rangaswamaiah,   Govindaiah,  

Channegowda and also on the basis of recovery of blood stained  

weapons at the instance of the accused, the investigating officer  

concluded that the accused Nos. 1 and 2 shared a common intention  

to murder Channegowda at around 4.30p.m. in Mandekal Bayalu on 22nd  

January, 1988. Thus, he arraigned them for offence punishable u/s  

302 read with section 34 IPC and filed charge-sheet.

10.  Since  the  accused  had  pleaded  not  guilty  of  the  charges  

leveled against them, trial was fixed. Some witnesses were examined  

by the then I additional District and Sessions Judge but on his  

transfer, the trial was abandoned. Later trial was re-fixed and  

concluded after recording evidence of prosecution.

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11. The prosecution opened its case and examined 19 witnesses and  

produced  in  evidence  Ex.P.1 to  P.32.  Prosecution  also  produced  

material  objects  M.Os.1  to  M.Os.23  on  behalf  of  the  accused.  

Reliance  was  also  placed  as  Ex.D.1  to  D.10  on  behalf  of  the  

accused.

12. Accused no. 1-Cheluvaiah @ Cheluva died during the trial. The  

defence counsel reported this fact to the Court on 20th December,  

1996 and filed its report. Consequently, the charge against accused  

no. 1 abated.

13. In the circumstances, the incriminating evidence led by the  

prosecution was brought to the notice of surviving accused viz.,  

accused no.2 -Seena and accused no.3 -Ramanna. As required, both  

were examined under Section 313 Cr.P.C. and their explanation was  

sought. Both the accused denied all incriminating circumstances and  

put upon a defence of denial simplicitor. Even though called upon  

to lead evidence in defence, if any, the accused declined.

14. Learned counsel for the appellant-State of Karnataka submitted  

that in view of statement of eye-witness PW.1-Channarayappa and  

PW.2 Gangadharappa, post-mortem report,  as  corroborated by PW-8  

Dr.K.N.  Rajanna,  PW.9-Panch  witness  and  PW.19  -Investigating  

Officer, the Trial Court was right in coming to a definite finding  

that the accused nos.2 and 3 were guilty for the offence punishable  

under Section 302/34 IPC.

15. Learned counsel for the accused no.2-appellant (herein) in the  

connected appeal contended that both the PWs.1 and 2 are related to  

the deceased, there are material contradictions in their statements  

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and on the basis of such statements the appellant-Seena-accused no.  

2 cannot be held guilty for the offence under Section 302 or even  

under Section 326 IPC.

16. We have heard the learned counsel for the parties and perused  

the evidence on record.

17. P.W.1 Channarayappa has deposed that on the date of incident  

he sent Chennagowda-deceased to Kudur police station to complain to  

the SHO about the threats caused by the accused. He sent C.W.14  

-Venkateshaiah (PW.7) alongwith Chennegowda to lodge report.  Both  

returned  to  the  village  at  12.00  noon.  At  1.00  p.m.  PW.1  

Channarayappa  accompanied  Channegowda  to  Mandekal  Bayalu.  They  

allowed the cattle and donkeys to graze and spend time in that area  

itself.  At 4.00P.M. accused nos. 1, 2 and 3 reached that spot from  

Holesidda  near  Mandekal  Bayalu.  They  were  armed  with  chopper.  

According to PW.1, Channegowda was sitting on a rock near Mandekal.  

Accused Nos. 1, 2 and 3 rushed towards him, Channegowda got up on  

the rock. Accused no.3-Ramanna hit on the left leg of Channegowda  

causing injury above the ankle and below the knee with chopper.  At  

the  same  time,  accused  no.  1-Seena  lifted  chopper  and  hit  

Channegowda on the head. Channegowda tried to prevent the blow by  

raising his hand. The blow tendered by accused no. 1 on head fell  

on the left hand injuring his fingers. Simultaneously,   accused  

no.2 assaulted the deceased with a chopper on the right leg. The  

deceased fell down. P.W.1 deposed that he saw all that happened and  

raised  an  alarm  seeking  help.  The  accused  turned  towards  him  

causing threats. PW.1 started running away from the place and he  

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was chased by accused 1 and 3.

According to PW.1 he was very much frightened and ran towards  

his village to get help. On the way the accused 1 and 2 continued  

to chase PW.1 upto the land of Gangadharappa who was examined as  

PW.2.  PW.1 ran and sought shelter.  Accused 1 and 2 stood outside  

the land and continued to pelt stones at PW.1. The stone caused  

injury to his right thigh. The accused asked him to come out. At  

that time PW.2-Gangadharappa intervened and asked them to go away.  

PW.1 returned to village and after collecting water went back to  

the  place  of  occurrence.  When  he  came  to  the  spot  he  saw  

Channegowda dead. Again he returned to his village and informed the  

villagers.

18. PW.2-Gangadharappa  deposed  that  7  to  8  years  ago  he  was  

working on his land around 4.30 P.M. when PW.1-Channarayappa came  

running from Bandekagalu shouting “Gangadharappa  Gangadharappa”.  

When he asked PW.1, he informed  PW.2-Gangadharappa that accused  

nos.1 and 2 were chasing him. According to PW.2 both the accused  

reached there holding chopper in their hands. They stood outside  

and pelted stones at PW.1 which caused injury to his right thigh.  

PW.2  advised  them  to  go  away.  The  statement  of  PW.2  fully  

corroborates the statement of PW.1 that he was chased by accused  

nos. 1 and 2.

19. Learned counsel for the appellant (accused no.2) has seriously  

disputed the version given by PW.1 and PW.2 with regard to their  

being together during the incident. At this juncture, it would  

suffice  to say  that  PWs.1 and  2  have  given  similar  statements  

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regarding accused no. 1 and 2 were chasing PW.1 up to the land of  

PW.2. PW.2 Gangadharappa had further deposed that the next day  

police arrived and checked his garden land which was pointed out by  

PW.1 -Channarayappa. PW.1 acted as witness to the seizure of stones  

used by the accused to assault him. The stones are marked as M.Os.  

13(a) (b) (c) and (d). PW.2 has stated that the stone marked as  

M.O. 13(a) was thrown by accused no.2 to hit PW.1 and the same was  

seized under the mahazar Ex.P.2.

20. PW.7-Venkataiah is a witness to seizure of material objects.  

i.e.  stones  from  the  land  of  Gangadhara  PW.2. The  witness  has  

spoken clearly that he was summoned by the police to the land of  

Gangadharappa  which  was  pointed  out  by  PW.1  -Channarayapa  and  

around 2.00p.m. mahazar was prepared seizing stones totally four in  

number marked as M.Os.15 to 18 under Ex.P.2.

21. PW.8-Dr.K.N.Rajanna was working as Medical Officer in Primary  

Health  Centre,  Guddemaranahalli  during  1987-88.  His  statement  

reveals  that  on  23.1.1988  he  received  requisition  from  the  

Investigating Officer to conduct autopsy on the dead body.  He  

proceeded to conduct the post-mortem on the body of the deceased  

-Channegowda. Post mortem conducted between 1.00p.m. to 3.00p.m..  

According to the autopsy report the age of the deceased was around  

45 years. External examination revealed that Clotted blood was seen  

on four places. Right hand was fully flexed at elbow and left hand  

flexed at right angle over the elbow. Rigor mortis present.  Blood  

stains were present over the right and left leg.  

There were injuries described as follows:

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i) Incised injury palmer aspect of proximal pharynx  

or left index finger situated horizontally measuring 1”  

x ½”x 1¼”.

ii) Incised wound palmer aspect of proximal pharynx of  

left middle finger ½”x ½”x ½” situated horizontally.

iii) Incised wound palmer aspect of proximal pharynx  

of left right finger 1”x½”x½” situate obliquely.  

iv) Incised wound inner aspect of left knee 1½”x½”x½”.

v) Incised wound outer aspect of left ankle about 2”  

above lateral malleolus situate horizontally measuring  

2½”x1½”x1” a lower end of left fibula bone cut along  

with the wound.

vi) Incised wound over left calf area at the junction  

of  lower  1/3rd and  upper  2/3rd horizontally. 5”x2”x1”  

left Fibular bone cut along with the wound.

Vii)  Incised wound over left tender-achilles 1½”x½”x  

¼”.

Viii)  Incised  wound  situated  horizontally  over  inner  

aspect of right leg about 3% above medical malleolus  

measuring  1”x1¼”x1”and 1¼” .

ix) Incised  wound  outer  lower  part  of  right  leg  

3”x2”x2” cutting lower end of fibula bone on the right  

side.

x)  Incised  wound  over  the  right  shin  bone  at  the  

junction  of  lower  1/3rd and  upper  2/3rd obliquely  

situated 1¼”x 1¼”x 1¼”.

The injuries nos. 1 to 10 noticed above described as ante  

mortem in the nature by the doctor. After dissecting the body he  

examined the valves, ribs, cartridges, Piraeus, larynx and trachea  

and found those parts healthy. Right lung, left lung pericardium  

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healthy but pale.  Heart empty, Abdomen showed valve, petitionlum,  

mouth,  pharynx,  esophagus  were  also  found  healthy.  Stomach  

contained undigested food particles. Genitals were found intact.  

During dis-section doctor noticed that the muscles and bones  

and blood vessels were good at the site of injury nos. 1 to 3,  

5,6,8 and 9.  There was fracture   of left fibular bone cut along  

with injury nos. 5 and 6.  Right fibular petitionlum bone cut with  

the wound injury no. 9. According to PW.8 -doctor, death was due to  

shock and haemorrhage as the result of injury nos.1 to 10. These  

injuries were caused by external violence. He issued post mortem  

report marked at Ex.P.3.

While describing the injuries, PW.8 deposed that injury nos. 1  

to 8 were incised wound and could be caused by object like chopper  

marked in this case as MO.6. According to him injury nos. 1,2 and 3  

could also be caused by similar object like MO.6(a).  

22. PW.9 -Kempahonnegowda is a witness to inquest. He deposed that  

police summoned him to the spot where dead body was lying.  He  

accompanied Krishnappa. Body was near Hutta (anthill) and a sickle  

was also lying nearby. It was blood stained. There was also a kukke  

(basket). Police prepared mahazar seizing both items under Ex.P.7.  

The sickle was marked as MO.5. The witness also authenticated the  

inquest report marked as Ex.P.8. Witness submitted that the police  

searched clothes of the dead body and found 10 muchagada leaves, a  

thread and a red coloured cloth piece.  All were blood stained and  

recorded  in  mahazar.  Like  other  witnesses  even  this  witness  

maintained consistency in statement with regard to aspects spoken  

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to by him in examination-in-chief even though when cross-examined  

in detail. During cross-examination, the witness stated about the  

blood stains at the spot. Four to five spots were blood stained  

which were measured by police officials. It was also elicited that  

during first mahazar body was not shifted.  

23. PW.11-Marirangaiah  is  another  important  witness  of  the  

prosecution as he told about recovery of material object at the  

instance of the accused.  According to him, Kudur police officials  

summoned him around 10.a.m. 8 years prior to evidence before the  

court. The police officials were accompanied by the officials of  

Nelamangala police.  They brought Chaluvaiah A.1 along with other  

accused.  In  the  presence  of  PW.2, CW.25  Shivashankar  and  CW.27  

Puttamallaiah, A.1 Chaluvaiah guided the police to Kharab land from  

under banyan tree and karegidda (head of dry leaves) he took out  

chopper and produced before the police which is MO.8. It was seized  

under Mahazar Ex.P.11. The said chopper was blood stained   and  

marked as MO.6(a). He further stated that  accused no. 2 who was  

also in the jeep guided  the police to this land and from under  

dry leaves took out chopper marked as MO.6 and produced the same  

which was seized under mahazar Ex.P.12. He told about accused no.3  

guiding  police  to another  spot  and  from  under  the  banyan  tree  

chopper MO.7 which was seized under Ex.P.13, was recovered.

24. PW.11-Marirangaiah  further  stated  that  accused  no.1-  

Chaluvaiah of his own stated that he would give his clothes. He  

guided police to his house. From a drum he took out the panche and  

other clothes which were stained with blood. They were seized under  

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mahazar  Ex.P.14.  The  shirt  was  marked  as  MO.19 and  the  panche  

marked as MO.20. Accused No. 2-Seena guided police to his house and  

produced shirt which is MO-21. The same was seized under Ex.P.15.  

Accused  no.  3-Ramanna  guided  police  to  his  house  and  produced  

shirt MO.22 which was seized under Ex.P.16. According to witness,  

accused  no.  2-Seena  again  guided  the  police  to  the  land  of  

Gangadharappa and produced a club which was seized under Ex.P.17  

and marked as MO.23.

25. According to PW.1 when he was grazing his cattle a little away  

from his brother, he noticed that accused persons approaching his  

brother and attacking him with choppers. When he attempted to reach  

the place of occurrence, the accused chased him till the garden of  

PW-2 -Gangadharappa. He narrated the incident not only to PW.2 but  

also to PW.6 -Channegowda and his wife. Though PW.1 specifically  

stated  that  all  the  three  accused  assaulted  his  brother  with  

chopper.  PW.2  does  not  speak  any  specific  act  or  presence  of  

accused no.3. According to Ex.P.1; PW.1 stated in his complaint  

that Accused Nos. 1 and 2 chased him and he entered the garden of  

PW.2  Gangadharappa.  Further,  he  stated  that  they  pelted  stones  

towards him. PW.3 also did not mention the presence of accused no.3  

near  the  garden  of  PW.2.  Therefore,  the  evidence  of  PW.6 also  

raises certain doubt regarding the presence of accused no. 3.,  

therefore, we find that some reasonable doubt arises as to the  

presence and participation of accused no.3 in the commission of  

the offence.

26. On review of the entire evidence on record, we find that the  

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prosecution has failed to prove the presence and participation of   

accused  no.3  in  the  commission  of  the  offence  and,  therefore,  

accused no.3 was rightly acquitted by the High Court of the offence  

under Section 302 IPC.

27. The evidence of PW.1 regarding participation of accused no. 1  

and accused no. 2 and their presence nearby the place of incident  

and immediately after the incident finds corroboration from the  

evidence of PW.2-Gangadharappa, an independent witness. No enmity  

is attributed to him and nothing is brought out in the cross-

examination as to why PW.2 should falsely implicate accused no. 1  

and 2 in the commission of the offence. There is no evidence on  

record  to  suggest  that  some  other  persons  involved  in  the  

commission of the offence.

28. Therefore, in so far as accused no. 2 is concerned, we find  

ample  evidence  to  prove  his  presence  and  participation  in  the  

commission of offence so we hold that the accused no. 2 was rightly  

convicted by the Trial Court for the offence under Section 302 IPC.

29. The High Court though agreed that the prosecution proved the  

presence of accused no.2 in the commission of the offence, wrongly  

held that the charge under Section 302 IPC was not proved. The  

High Court wrongly formed an opinion that the offence under Section  

326 IPC has been established against the accused no. 2.

30. In  view  of  the  findings  recorded  above,  we  have  no  other  

option but to set aside the impugned judgment dated 9th December,  

2002 passed by the High Court of Karnataka at Bangalore in so far  

as accused no. 2 Seena @ Srinivasa is concerned. The part of the  

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said judgment acquitting accused no.3-Ramanna @ Rama is upheld.  

The Trial Court judgment dated 13th January, 1999 passed by the I  

Additional District and Sessions Judge in respect of accused no. 2  

stands restored.

Criminal Appeal No. 165 of 2004 filed by the accused no. 2 is  

dismissed.  

The Criminal Appeal Nos. 166-167 of 2004 filed by the State of  

Karnataka is allowed in part, in so far as it relates to accused  

no.2 –Seena @ Srinivasa.  He is directed to be taken into custody  

if he is on bail, for undergoing the remainder period of sentence.

…………………………………………J.                 (SUDHANSU JYOTI MUKHOPADHAYA)

…………………………………………J.  (RANJANA PRAKASH DESAI)    

NEW DELHI, July 2, 2014.

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