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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 46  OF 2005

Bhimanna                                                       ..Appellant

Versus

State of Karnataka                                                         … Respondent

WITH

CRIMINAL APPEAL NO. 171  OF 2005

J U D G M E N T

DR. B.S. CHAUHAN, J.

1. Both these  appeals have been filed against  the impugned judgment  

and order dated 31st March, 2004 passed by the High Court of Karnataka at  

Bangalore, dismissing the Criminal Appeal No. 839 of 2001 and allowing  

Criminal Appeal No. 1132 of 2001, filed by the State. The High Court has  

dismissed the appeal of appellant Bhimanna, against the order of conviction  

under Section 302 by the trial court,  but  allowed the appeal of the State  

against the appellants in Criminal Appeal No. 171 of 2005 herein, reversing

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the judgment of the trial court, acquitting them of the charge under Section  

302 of the Indian Penal Code, 1860 (hereinafter called ‘IPC’) and awarding  

them life imprisonment.   

2. Facts and circumstances giving rise to these appeals are as follows :–

A. As  per  the  case  of  the  prosecution,  Yenkappa  (A-1),  appellant  in  

Criminal Appeal No. 171 of 2005 is the father of Bhimanna (A-2), who is  

the appellant in Criminal Appeal No.  46 of 2005, and Suganna (A-3), is the  

nephew  of  Yenkappa  (A-1).   Deceased  Bheemanna  was  the  nephew  of  

Yenkappa(A-1).   Yenkappa(A-1)  owns  land  adjacent  to  the  land  of  the  

deceased Bheemanna in revenue estate of village Buddinni, Police Station  

Ramdurga,  in  the  district  of  Raichur.   There  was  a  dispute  between  

Yenkappa  and  the  deceased  over  the  land  of  the  deceased  as,  deceased  

refused to give him right of passage through his land.  Thus, a Panchayat  

was  convened  in  the  village,  wherein  it  was  decided  that  neither  of  the  

parties will enter the others’ land, to use the same as a pathway.  

B. On  17.11.1999  at  about  4.00  p.m.,  Yenkappa(A-1),  alongwith  

Bhimanna (A-2)  and Suganna (A-3), was returning home with agricultural  

implements i.e. axes and a plough. They attempted to use the land of the  

deceased as a pathway.  The deceased Bheemanna, who was present on his  

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land alongwith his wife Paddamma (PW.1) and mother, namely, Bheemava,  

obstructed the accused persons asking them not to pass through his land.  

Yenkappa(A-1) then started hurling abuses in filthy language and instigated  

Bhimanna  (A-2)  and  Suganna  (A-3)  to  assault  the  deceased.   Thus,  

Bhimanna (A-2) and Suganna (A-3) began assaulting the deceased with axes  

over his head and right hand.  Yenkappa (A-1) assaulted the deceased with  

“Meli”  (Wooden  part  of  a  plough).   Paddamma (PW.1)  and  Bheemava,  

mother  of  the  deceased  went  to  save  the  deceased,  but  they  too,  were  

threatened with assault. Similar threats were hurled when Rangayya (PW.6),  

nephew of the deceased and his father Hanumappa approached the place of  

occurrence. The accused persons left the place after assaulting the deceased,  

throwing away the axes and wooden part of the plough.  Rangayya (PW.6)  

brought a bullock cart as asked by Paddamma (PW.1) from the village and  

the deceased was then taken to Ramdurga Police Station.  Upon the advice  

of  the  police,  the  deceased  was  taken  in  a  mini  lorry,  driven  by  

Mahadevappa (PW.10) to Deodurga Hospital and when they reached there at  

8.00  p.m.,  the  doctor  declared  Bheemanna   dead.  On  the  basis  of  the  

complaint submitted by Paddamma (PW.1), an FIR was lodged at 8.15 p.m.  

under Sections 143, 147, 148, 302, 323 and 504 read with Section 149 IPC.  

Investigation was initiated by Rajashekhar (PW.14), Circle Inspector.   

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C. The  inquest  was  conducted  over  the  dead  body  of  the  deceased  

Bheemanna in the presence of  Panchas,  including Basawarajaiah  (PW.2).  

The  post-mortem  was  conducted  by  Dr.  Patil  Prabhakar  (PW.12).   The  

investigating officer recovered the axes and the wooden part of the plough  

used in the crime and sent the same for FSL examination and, subsequently,  

the  three  appellants  were  also  arrested.   After  completion  of  the  

investigation, charge-sheet was filed against the appellants for the offences  

punishable under Sections 447, 504, 302 read with Section 34 IPC.  

D. Upon conclusion of the trial in Sessions Case No. 40 of 2000, the  

learned Sessions Judge vide judgment and order dated 19.6.2001, convicted  

Bhimanna (A-2) for the offences punishable under Sections 447, 504, 302  

read with Section 34 IPC and awarded him life imprisonment with a fine of  

Rs.2,000/-.  So far as Yenkappa (A-1) and   Suganna (A-3) are concerned,  

they were only convicted under Sections 447, 504 read with  Section 34 IPC.  

E. Being aggrieved, Bhimanna (A-2) preferred Criminal Appeal No. 839  

of 2001 and the State of Karnataka filed Criminal Appeal No. 1132 of 2001  

against the accused Yenkappa (A-1) and Suganna (A-3). The High Court has  

dismissed the appeal of Bhimanna (A-2) and allowed the appeal of the State  

convicting Yenkappa (A-1) and  Suganna (A-3)  also under Section 302 IPC.

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Hence, these appeals.  

3. Shri Basava Prabhu S. Patil, learned senior counsel appearing for the  

appellants,  has submitted that Bhimanna (A-2) was wrongly convicted by  

the  courts  below  under  Section  302  read  with  Section  34  IPC,  as  the  

prosecution  failed  to  explain  adequately  the  genesis  of  the  case.  The  

deceased Bheemanna had no land in close proximity to the land of A-2.  

Therefore,  the question of any dispute could not  arise.     The same was  

proved by way of cogent evidence and the courts below failed to appreciate  

the same in the correct perspective.  The presence of witnesses, particularly  

Paddamma (PW.1) and Rangayya (PW.6), is doubtful, for the reason that  

Paddamma (PW.1) had given birth to a girl child only one month before the  

date of such incident, and it was thus highly unlikely, that in such a physical  

condition,  she  would  be  able  to  do  any  agricultural  work.   Bheemava,  

mother of the deceased, was in fact present at the place of occurrence, and  

has not been examined by the prosecution.  Thus, the prosecution is guilty of  

withholding  a  material  witness.   Rangayya  (PW.6)  could  not  have  been  

present there for the reason that he did not have land in close proximity to  

the place of occurrence. More so, it was not a pre-determined assault and the  

incident clearly occurred in the spur of the moment.  The weapons used in  

the crime were basically agricultural implements with which the appellants  

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had been working in their fields.  The High Court reversed the judgment of  

the trial court so far as the acquittal of Yenkappa (A-1) and  Suganna (A-3)  

is concerned,  without applying the parameters laid down in this regard, by  

this Court.  The High court erred in convicting A-1 and A-3 for the offences  

punishable under Section 302 IPC, as there is no evidence available to show,  

that  all  the  accused  acted  in  furtherance  of  common  intention.  Thus,  

conviction of either of the appellants under Section 302 IPC is not justified  

and the appeals deserve to be allowed.    

4. On  the  contrary,  Shri  V.N.  Raghupathy,  learned  standing  counsel  

appearing for the State has opposed the appeals, contending that no fault can  

be found with the judgment of the High Court.   After re-appreciation of the  

evidence on record, the High Court reached the correct conclusion that all  

three appellants  were responsible  for  the homicidal  death of  Bheemanna.  

The deceased suffered 12 injuries.  In the opinion of the Dr. Patil Prabhakar  

(PW.12), injury nos. 1 and 12 could have been caused by Bhimanna (A-2),  

and thus, as a natural corollary, injury nos. 2 to 11 would have been caused  

by Yenkappa (A-1) and   Suganna (A-3). Thus,  not convicting them for the  

said  injuries  and restricting their  conviction  under  Sections  447 and 504  

read with Section 34 IPC cannot be justified.   The trial  Court’s decision  

cannot be justified in regard to the fact that charges were not framed against  

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A-1 and A-3 by it, for any other offence owing to the fact that, the same was  

not provided for by the Investigating Officer in the charge sheet  filed by  

him.    The High Court has rightly  convicted Yenkappa (A-1) and   Suganna  

(A-3) for the offences punishable under Section 302/34 IPC.  The appeals  

lack merit and are liable to be dismissed.   

5. We  have  considered  the  rival  submissions  made  by  the  learned  

counsel for the parties and perused the records.   

6. At the time of autopsy, the following injuries were found on the body  

of the deceased Bheemanna:

1. Incised wound of size 3" X 0.75" X brain deep situated in  the middle of  the head.  Edges  everted,  blood clots  and brain  matter present. Underlying fracture of skull bone seen and felt.  

2. Incised wound transversely situated in the dorsum of the  fore  arm 2.5"  above  the  right  wrist  joint,  size  3"  X  0.5"  X  muscle deep. Clots present, edges everted and clear out.  

3. Lacerated  wound  of  size  1"  X  0.5”  X  muscle  deep  situated in the temporo-maxillary area in left side. Clots present.  

4. Lacerated wound of size 1" X 0.5 X muscle deep behind  the pinna of left ear. Clots present.  

5. Contusion of size 5" x 1” situated in the left side of the  arm directed above downwards from shoulder.  

6. Contusion of size 3" X 1" in the left shoulder obliquely  above downwards.  

7. Lacerated  wound  of  size  3"  X  0.5"  X  muscle  deep  situated in the anterior aspect of the fore arm in the middle.  

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8. Lacerated wound in the middle of the right leg anteriorly  size 1" X 0.5" X muscle deep clots present.  

9. Contusion in the left  side of  the back obliquely in the  middle size 3" X 2".   

10. Contusion in the right side of the flank side of the chest  size 3" X 0.5".  

11. Lacerated wound in the medial aspect of the right knee  size, 2" X 0.5" X muscle deep. Clots present.  

12. Contusion in the left-side of the chest in the lower end,  size 3" X 0.5".

Upon  dissection,  Dr.  Patil  Prabhakar  (PW.12)  noticed  the  following internal injuries.  

1. Fracture of front parietal bone in the middle of the head,  size 1" X 0.25" X brain deep, brain matter visible and silted out.  Fracture underneath, brain lacerated, size 1" X 0.5" X 0.5".  

2. Fracture of thorasic rib 9the and 10 ribs anteriorly in the  middle. Laceration of lower lobe of lung, size 1.5" X 0.5" Blood  present in the thorax about 200 ML.   

7. So far as the injuries are concerned, Dr. Patil Prabhakar (PW.12) has  

clarified  in  his  cross-examination  that  the  injury  Nos.  1  and  12  were  

grievous  in  nature  and  were  actually  responsible  for  the  death  of  the  

deceased Bheemanna. Lacerated injuries were 5 in number, though the same  

were simple in nature and they could not have been caused by the blunt  

portion of an axe or by using a stick.   

8. Paddamma (PW.1) deposed that her husband owned land, adjacent to  

the land of A-2. There was some dispute regarding the pathway between  

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them.  A Panchayat was convened to resolve the dispute, and the parties  

were restrained from using the others’ land as passageway. She stated that  

she was working in the field alongwith her husband and mother-in-law on  

17.11.1999.  At about  4.00 p.m.,  the accused persons,  while  going to  the  

village,  after  finishing  their  work  in  the  adjacent  field,  wanted  to  pass  

through her land. Her husband raised an objection.  Yenkappa (A-1) then  

started  abusing the  deceased  and instigated  the  other  accused  persons  to  

assault him. The appellants used axes, and the wooden part of a plough to  

injure her husband. Her husband, as a result, fell down. When she tried to  

save him, she too, was threatened by the appellants. Once her husband had  

fallen,  the  accused,  however,  stopped  the  assault.  (A-2)  threw down the  

“Meli” there and the accused left the place saying that the victim had fallen.  

Rangayya (PW.6), who came to the said place, was asked to bring a bullock  

cart from the village, in which they then took the deceased to the police  

station. Upon the advice of the police the deceased was taken to the hospital,  

where he was declared dead.  She has also admitted in her cross-examination  

that the place of occurrence was about 1 km. away from her house and that  

she had given birth to a girl child one month prior to the date of occurrence  

of such incident.  Her mother-in-law, who was also present at the place of  

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occurrence  was  suffering  from weak  eye-sight,  and  no  longer  had  good  

vision as a result of old age.   

9. Rangayya,  in  turn,  (PW.6),  deposed that  he was  the  cousin  of  the  

deceased and was working in his field.  There was a dispute between the  

appellants and the deceased with respect to using the land of the deceased, as  

passage.  He  witnessed the appellants causing injuries to the deceased and  

he corroborated the version of events as given by Paddamma (PW.1).   In his  

cross-examination, it was also stated by Rangayya (PW.6) that the accused  

persons had filed a case against the deceased in court with respect to the  

aforementioned land dispute.   

10. Venkat Rao (PW.8), Junior Engineer of PWD, after inspection and  

examination of the revenue record, prepared a site plan for the area, showing  

that  the  lands  of  the  deceased  and the  appellants  were,  in  fact,  in  close  

proximity to each other and were merely demarcated by a bund.   

11. The trial Court after appreciating the evidence on record, came to the  

conclusion that all three accused (A-1 to A-3) did not act in furtherance of  

any common intention. Bhimanna (A-2) was solely responsible for the death  

of the deceased. Therefore, Bhimanna (A-2) alone could be convicted under  

Section 302 IPC and further under Sections 447and 504 read with Section 34  

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IPC. However, Yenkappa (A-1) and Suganna (A-3) acted without sharing  

any  common  intention  with  Bhimanna  (A-2).  Thus,  they  could  not  be  

convicted  under  Section  302  IPC  and  could  be  convicted  only  under  

Sections 447 and 504 read with Section 34 IPC.  The court further held that  

Yenkappa (A-1) and Suganna (A-3) could also be convicted for the offence  

of causing injury Nos. 2 to 11, but no charge had been framed under any of  

the Sections 323, 324, 325, 326 and 327 IPC in this regard. Therefore, no  

punishment could be awarded to them for the same. The trial Court held as  

under:    

“The  prosecution  has  proved  the  charge  under   Section 302 read with Section 34 IPC only against   Bhimanna   and  further  the  other  charges  under   Sections 447 and 504 read with Section 34 IPC are   proved against Yenkappa (A-1) and   Suganna (A- 3).  Even though this court  has accepted that A-1   and   A-3  have  also  assaulted  by  Mos.  1  to  3   respectively, on the deceased, but those assaults are  not  the  direct  result  of  death  of  the  deceased   Bheemanna.  Moreover, in the charge-sheet, there   is  no incoporation  of  charges  such  as  Sec.  323,   324, 325, 326 or 327 of IPC against these accused.   Hence,  in  the  absence  of  such  specific  charge   regarding  causing  bleeding  injuries  by  deadly   weapons,   by  these  A-1  and  A-3, this  court  is   unable  to  convict  them  under  any  such  charge,   which is admittedly not incorporated in the charge- sheet  and  also  not  framed  against  them  by  this   court.” (Emphasis added)

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12. The High Court, without reversing the finding recorded by the trial  

court, that there was no meeting of minds of all the accused with respect to  

causing such grievous injuries to the deceased, held that, as Yenkappa (A-1)  

and Suganna (A-3) had also been charged under Section 302/34 IPC, they  

too, could be convicted under Section 302 IPC and hence allowed the State  

appeal convicting them also under Section 302/34 IPC. The High Court held  

as under:    

  “In view of the above, we are of the clear view   that the trial court though rightly held that all the   accused  had committed  the  offences  punishable   under Sections 447 and 504 read with Section 34   of  IPC  and  A-2  has  committed  the  offence   punishable  under  Section  302  of  IPC,  it  has   erroneously  held  that  A-1  and  A-3  cannot  be   held guilty for the offence of murder punishable   under Section 302 of IPC, even though, Section  34 of IPC was invoked by the prosecution.  So, we   do not agree with the observations made in Para   Nos.  36  to  39  of  the  impugned  judgment  and   conclusion arrived at by the trial court so far as   AI  and  A3  are  concerned  with  regard  to  their   guilt for the offence under Section 302 read with   Section 34 of IPC.

In the result and for the foregoing reasons,   Criminal  Appeal  No.  839/2001  filed  by  A-2  is   dismissed  whereas,  Criminal  Appeal  No.   1132/2001  filed  by  the  State  is  allowed  and   Accused  No.  1  and  3  are  held  guilty  for  the   offence punishable under section 302 read with   34  of  IPC also  and  accordingly  convicted  and  sentenced to  undergo imprisonment  for life  like   that of A-2.”                               (Emphasis added)

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13. Thus, it is evident that both the courts below after appreciating the  

evidence  available  on  record,  came  to  a  conclusion  regarding  the  

participation of all three appellants. The trial court could convict Yenkappa  

(A-1) and Suganna (A-3), only for the offences punishable under Sections  

447 and 504 IPC, for want of framing of charges under any other section of  

IPC.   

14. It is a matter of great regret that the trial court did not proceed with  

the case in the correct manner. If the trial Court was of the view that there  

was sufficient evidence on record against Yenkappa (A-1) and Suganna (A-

3),  which  would  make  them  liable  for  conviction  and  punishment  for  

offences, other than those under Sections 447 and 504/34  IPC, the court was  

certainly not helpless to alter/add  the requisite charges, at any stage prior to  

the conclusion of the trial.  Section 216 of the Code of Criminal Procedure,  

1973  (hereinafter  called  ‘Cr.P.C.’)  empowers  the  trial  Court  to  alter/add  

charge(s),  at  any stage before the conclusion of  the trial.   However,  law  

requires  that,  in  case  such  alteration/addition  of  charges  causes  any  

prejudice, in any way to the accused, there must be a fresh trial on the said  

altered/new charges, and for this purpose, the prosecution may also be given  

an opportunity to recall witnesses as required under Section 217 Cr.P.C.   

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15. In Hasanbhai Valibhai Qureshi v. State of Gujarat,  AIR 2004 SC  

2078, this Court held:

“Therefore,  if  during trial  the Trial  Court,  on a   consideration  of  broad probabilities  of  the case,   based  upon  total  effect  of  the  evidence  and  documents produced is satisfied that any addition   or alteration of the charge is necessary, it is free   to  do  so,  and  there  can  be  no  legal  bar  to   appropriately  act  as  the  exigencies  of  the  case   warrant or necessitate.”

16. Such power empowering alteration/addition of charge(s), can also be  

exercised by the appellate court,  in exercise of its powers under Sections  

385(2) and 386  Cr.P.C.  

In   Kantilal Chandulal Mehta v. State of Maharashtra & Anr.,  

AIR 1970 SC 359, this Court while dealing with the power of the appellate  

Court under the earlier Code held:  

“The power of  the Appellate Court  is  set  out  in   Section 423 of the Cr.P.C and invests it with very   wide powers. A particular reference may be made   to Clause(d) of sub-section (1), as empowering it   even to make any amendment or any consequential   or  incidental  Order  that  may be  just  or  proper.   Apart from this power of the Appellate Court  to   alter  or  amend  the  charge,  Section  535 Cr.P.C,   further  provides  that,  no  finding  or  sentence,   pronounced  or  passed  shall  be  deemed  to  be   invalid merely on the ground that no charge has   been  framed  unless  the  Court  of  Appeal  or   

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revision  thinks  that  the  omission  to  do  so,  has   occasioned failure of justice, and if in the opinion   of any of these courts a failure of justice has been   occasioned by an omission to frame a charge, it   shall order a charge to be framed and direct that   the  trial  be  recommenced  from  the  point   immediately after the framing of the charge.”

17. Thus, we are of the considered opinion that the trial court  committed  

a  grave  error  in  acquitting  Yenkappa  (A-1)  and  Suganna  (A-3)  for  the  

offence of causing injuries to the deceased, in spite of there being sufficient  

evidence on record against them in this respect, simply for the reason that  

the police did not file a charge-sheet in relation to such offences committed  

by  them.  Thus,  the  trial  court  should  have  altered/added  the  requisite  

charge(s) and proceeded with the case in accordance with law.  

18. In  such  a  fact-situation,  a  question  also  arises  as  to  whether  a  

conviction  under  any  other  provision,  for  which  a  charge  has  not  been  

framed, is sustainable in law. The issue is no longer res integra and has been  

considered by the Court time and again. The accused must always be made  

aware  of  the  case  against  them so  as  to  enable  them to  understand  the  

defence  that  they can lead.  An accused  can be convicted  for  an  offence  

which is minor than the one, he has been charged with, unless the accused  

satisfies the Court that there has been a failure of justice by the non-framing  

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of a charge under a particular penal provision, and some prejudice has been  

caused to the  accused. (Vide : Amar Singh v. State of Haryana, AIR 1973  

SC 2221).  

Further the defect must be so serious that it cannot be covered under  

Sections  464/465  Cr.P.C.,  which  provide  that,  an  order  of  sentence  or  

conviction shall  not be deemed to be invalid only on the ground that no  

charge  was  framed,  or  that  there  was  some  irregularity  or  omission  or  

misjoinder of charges, unless the court comes to the conclusion that there  

was also, as a consequence, a failure of justice. In determining whether any  

error, omission or irregularity in framing the charges, has led to a failure of  

justice, this Court must have regard to whether an objection could have been  

raised at an earlier stage, during the proceedings or not. While judging the  

question of prejudice or guilt, the court must bear in mind that every accused  

has a right to a fair trial, where he is aware of what he is being tried for and  

where the facts sought to be established against him, are explained to him  

fairly and clearly, and further, where he is given a full and fair chance to  

defend himself against the said charge(s).

19. This Court in Sanichar Sahni v. State of Bihar, AIR 2010 SC 3786,  

while considering the issue placed reliance upon various judgments of this  

Court  particularly  in  Topandas  v.  State  of  Bombay,  AIR 1956  SC 33;  

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Willie (William) Slaney v. State of M.P., AIR 1956 SC 116; Fakhruddin  

v.  State  of  Madhya  Pradesh,  AIR  1967  SC  1326;  State  of  A.P.  v.  

Thakkidiram Reddy, AIR 1998 SC 2702; Ramji Singh & Anr. v. State of  

Bihar, AIR 2001 SC 3853; and Gurpreet Singh v. State of Punjab, AIR  

2006 SC 191, and came to the following conclusion :  

“Therefore,………………  unless  the  convict  is  able  to   establish that defect in framing the charges has caused   real prejudice to him and that he was not informed as to   what was the real case against him and that he could not   defend himself  properly, no interference is required on  mere  technicalities.  Conviction  order  in  fact  is  to  be   tested on the touchstone of prejudice theory.”

A  similar  view  has  been  reiterated  in  Abdul  Sayeed  v.  State  of  

Madhya Pradesh, (2010) 10 SCC 259.

20. In Shamnsaheb M. Multtani v. State of Karnataka, AIR 2001  SC  

921,   this  Court  explained the meaning of  the phrase  ‘failure  of  justice’  

observing that  the  superior  court  must  examine  whether  the  issue  raised  

regarding failure of justice is really a failure of justice or whether it is only a  

camouflage.  The court must further examine whether the said aspect is of  

such a nature, that non-explanation of  it  has contributed to penalising an  

individual, and if the same is true then the court may say, that since he was  

not given an opportunity to explain such aspect, there was ‘failure of justice’  

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on account of non compliance with the principles of natural justice.  The  

expression ‘failure of justice’ is an extremely pliable or facile an expression  

which can be made to fit into any situation of a case.  

21. The court must endeavour to find the truth. There would be ‘failure of  

justice’ not only by unjust conviction but also by acquittal of the guilty, as a  

result of unjust failure to produce requisite evidence. Of course, the rights of  

the accused have to be kept in mind and safeguarded but they should not be  

over emphasised to the extent of forgetting that the victims also have rights.  

It has to be shown that the accused has suffered some disability or detriment  

in  the  protections  available  to  him under  Indian  Criminal  Jurisprudence.  

‘Prejudice’, is incapable of being interpreted in its generic sense and applied  

to  criminal  jurisprudence.  The plea  of  prejudice  has  to  be  in  relation  to  

investigation or trial and not matters falling beyond their scope. Once the  

accused is able to show that there has been serious prejudice caused to him  

with respect to either of these aspects, and that the same has defeated the  

rights  available  to  him  under  jurisprudence,  then  the  accused  can  seek  

benefit  under  the  orders  of  the  Court.  (Vide:  Nageshwar  Sh.  Krishna  

Ghobe  v.  State  of  Maharashtra,  AIR  1973  SC  165;  State  by  Police  

Inspector v. T. Venkatesh Murthy, AIR 2004 SC 5117; Rafiq Ahmed @  

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Rafi v. State of U.P., AIR 2011 SC 3114; and Rattiram & Ors. v. State of  

M.P. through Inspector of Police, AIR 2012 SC 1485).    

22. The  instant  case  is  required  to  be  examined  in  the  light  of  the  

aforesaid settled legal propositions.

The trial  court  has framed charges against  all  the appellants  under  

Sections 447 and 504 and Section 302 read with Section 34 IPC and the  

points to be determined were also framed by the trial court as under:

(i) Whether the accused on account of their enmity with the deceased,  

trespassed  on to  his  land with  common object,  and committed  the  

offence under Section 447 read with Section 34 IPC.

(ii) Whether the accused on the said date, time and place, intentionally  

insulted  the  deceased  by  abusing  him  and  thereby  deliberately  

provoked him, knowing that it would cause him to break public peace,  

and therefore,  committed  the  offence  under  Section  504 read with  

Section 34 IPC.

(iii) Whether the prosecution proved that the accused on the said date, time  

and place after trespassing on to the land of the deceased picked a  

quarrel  with  him due  to  earlier  enmity,  and assaulted  him thereby  

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committing the said murder under Section 302 read with Section 34  

IPC.

(iv) Whether the prosecution proved that the accused have committed the  

offence under Sections 447, 504 and 302 read with Section 34 IPC  

with common object beyond all reasonable doubt.   

23. The trial court came to the conclusion that there was no meeting of  

minds and all  three appellants did not act in furtherance of any common  

intention.  Therefore,  Yenkappa  (A-1)  and  Suganna  (A-3)  could  not  be  

convicted  under  Section  302  read  with  Section  34  IPC  and  they  were  

convicted only under Sections 447 and 504 IPC and sentences were awarded  

to them setting off  the period spent by them in custody during trial. The trial  

court  was  patently  in  error  in  holding that,  in  spite  of  the  fact  that  two  

accused were clearly responsible  for causing injury Nos. 2 to 11, they still  

could not be convicted for any offence for want of framing of charges under  

any other penal provision. In such an event, the trial court would be justified  

in  altering/adding  the  requisite  charge(s)  or  even  without  such  

alteration/addition,  punishing  them for  the  said  offences,  considering the  

intensity  of  the injuries  as  the same could be an offence minor than the  

offence punishable under Section 302 IPC.  

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24. The  High  Court  came to  the  conclusion  that,  as  the  charge  under  

Section 302/34 was also framed against Yenkappa (A-1) and Suganna (A-3),  

they too, were liable to be convicted under Section 302.  Such a conclusion  

is not justified, as the High Court has not reversed the finding recorded by  

the  trial  court  that  all  three  accused  did  not  act  in  furtherance  of  any  

common intention.  

25. We have examined the number and intensity of the injuries and the  

role played by each of the appellants.  There is ample evidence on record  

particularly the deposition of Paddamma (PW.1), wife of the deceased to  

show that when her husband fell down after receiving the said injuries, the  

accused stopped the assault. Bhimanna (A-2) threw down the “Meli” and all  

the accused left the place of occurrence saying that the victim had fallen.  

This clearly establishes that the appellants did not intend to kill the deceased  

and it all happened in the spur of the moment upon a heated exchange of  

words between the parties, after criminal trespass by the appellants on to the  

land of the deceased.   Therefore, it does  not seem to be a pre-determined or  

pre-meditated case. Ends of justice would, therefore, be met, if all the three  

appellants are convicted under Section 304 Part-I  read with Section 34 IPC  

and sentences are awarded accordingly. As a result, all the appellants are  

convicted under Sections 447, 504 and 304 Part-I read with Section 34 IPC.  

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Bhimanna  (A-2)  has  already  served  more  than  13½  years  in  jail.  

Therefore, he is awarded sentence as already undergone and it is directed  

that he be released forthwith, unless wanted in some other case. Yenkappa  

(A-1) and Suganna (A-3) are awarded a sentence of 10 years RI.  All of  

them have already served the sentences awarded for the offences punishable  

under Sections 447, 504/34 IPC.

Learned counsel for the appellants has pointed out that Yenkappa (A-

1) and Suganna (A-3) have already served near about 10 years.  They be  

released from jail after serving the sentence of 10 years, if not already served  

and are not wanted in some other case.  

In view of the above, both the appeals stand disposed of.   

                                                      ………………………..J.           (P. SATHASIVAM)

 ………………………..J.  (Dr. B.S. CHAUHAN)

New Delhi,           

September 4, 2012

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