SEENA @ SRINIVASA Vs STATE OF KARNATAKA
Bench: SUDHANSU JYOTI MUKHOPADHAYA,RANJANA PRAKASH DESAI
Case number: Crl.A. No.-000165-000165 / 2004
Diary number: 2232 / 2003
Advocates: ANJANA CHANDRASHEKAR Vs
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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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