PETITIONER: PANCHAIAH Vs. RESPONDENT: STATE OF KARNATAKA DATE OF JUDGMENT04/11/1993 BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) RAY, G.N. (J) CITATION: 1994 AIR 963 1994 SCC Supl. (2) 235 1993 SCALE (4)477 ACT: HEADNOTE: JUDGMENT:
ORDER
1. This appeal has been filed by three original convicted
accused 1, 3 and 6 namely, Panchaiah, Shankariah and Khan
Sab. During the pendency of the appeal, the second
appellant (original accused 3) died. Therefore, we are
concerned with the case of the remaining appellants. These
appellants along with three others were tried for offences
punishable under Section 324 and Section 304 read with
Section 34 IPC for causing injuries to PW 5 and for causing
the death of Devendrappa. The case mainly rested on the
evidence of PW 5 and PW 8 out of whom PW 5 is the injured
witness. The trial court however acquitted all the six.
The State preferred an appeal and the Division Bench of the
High Court while acquitting the three other accused A-2, A-4
and A-5 convicted the appellants under Sections 302/34 IPC
and 324 read with Section 34 IPC for causing death and
injuries to PW 5 and sentenced each of them to undergo life
imprisonment and simple imprisonment for six months
respectively. The sentences are directed to run
concurrently. Hence the present appeal under Section 379
CrPC read with Section 2 of the Supreme Court (Enlargement
of Criminal Appellate Jurisdiction) Act, 1970.
2. The prosecution case is as follows. The accused, the
material witnesses and the deceased belonged to Village
Mylar in Bellary District, Karnataka. A-1 to A-3 are
brothers. They were living jointly. They were running a
hotel at the bus stand. A-4 to A-6 are brothers. They had
a sister by name Peeravva. The deceased was the husband of
PW 11. PW 10 is the cousin brother of the deceased
Devendrappa. The father of the deceased made a complaint
two years prior to the present occurrence against the
deceased and seven others for having outraged the modesty of
Peeravva, sister of A-4 to A-6. The charge-sheet was filed
against the accused but they were acquitted. As a result
there was a bitter enmity between the two groups.
Proceedings under Section 110 CrPC were also registered
against the deceased and the brothers of A-1 to A-3 made a
complaint alleging theft of some articles against the
deceased and in respect of’ tile same, charge-sheet was also
filed. While on May 4, 1979 namely, the date of occurrence
Gurunanjaiah the brother of A-1 to A-3 made a complaint
against the deceased and six others under Sections 147 and
436. At about 8.00 a.m. on May 4, 1979 the deceased along
with PW 5 and PW 8 went to his land two miles away from the
village to plough the land with a tractor. They ploughed
the land till about 11.00 a.m. Thereafter they went to a
Neem tree and sat in the shade. They took their food.
After the rest at about 12.30 or 1.00 p.m. PW 5 and PW 8 got
up on hearing some noise. They saw A-1 to A-6 coming there.
A-1 was armed with cycle chain and A-2 to A-6 were having
clubs in their hands. Accused abused the deceased in vulgar
language and thereupon A-1 assaulted the deceased on his
head with cycle chain. The deceased got up and sat in a
frightened mood. Thereafter PW 5 and PW 8 rescued the
deceased. Accused threatened PW 8. Thereafter A-1 to A-6
assaulted the deceased with clubs and A-1 with a cycle chain
on various parts of the body. The accused after inflicting
these injuries left the scene of occurrence. PW 5 and PW 8
found the deceased lying injured and unconscious, lifted him
to the village. The mother of the deceased and PW 10 were
informed about the occurrence by PW 5. Thereafter PWs 5, 8
and 10 carried the deceased to the hospital in the tractor.
PW 7, a Compounder at the Primary Health Centre, Holalu
informed PW 5 and others that the doctor had gone to
Bellary. Thereafter PW 5 and others searched for a
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private doctor at Holalu and they could not find him. PW 5
and others then proceeded to Hirehadagali. On the way the
deceased succumbed to the injuries. PW 5 and others carried
the body of the deceased to the police station at
Hirehadagali and informed PW 19, the Sub-Inspector.
Thereupon PW 19 asked PW 5 to give a written complaint.
Accordingly PW 5 got a report of the occurrence written and
presented the same to the Sub-Inspector, who registered the
case. The next morning PW 5 was sent for medical
examination and inquest was held over the dead body and
postmortem was conducted by doctor, PW 6. He opined that the
injuries to the head which caused internal damage, caused
death as a result of shock due to haemorrhage. On PW 5 the
doctor found simple injuries. The accused were arrested and
after completion of the investigation charge-sheet was laid.
The prosecution examined 20 witnesses. The accused pleaded
not guilty and stated that they were falsely implicated.
The trial court examined the evidence of PW 5 and PW 8 and
pointed out that they have given an exaggerated version and
that the medical evidence show that the occurrence could
have taken place at a different time and it was not safe to
rely on the evidence of Gurunanjaiah. In that view of the
matter all the accused were acquitted. The High Court once
again examined the evidence of these two eyewitnesses in
great detail and was prepared to accept their evidence. So
far as A-1, A-3 and A-6 are concerned since specific overt
acts were attributed to them the High Court confirmed their
acquittal.
3. Mr. Javali, the learned Senior Counsel submits that
evidence of these two witnesses had been discarded in
respect of three accused. It would therefore be highly
unsafe to convict the appellant on the same evidence. His
further submission is that the fact that PW 5 was examined
by the doctor at a belated stage makes his evidence
suspicious. He also invited our attention to some of the
admissions made by PW 5, the injured witness in his cross-
examination where he has stated that all the accused beat
the deceased indiscriminately and according to the learned
counsel if that version is to be believed, there would have
been number of injuries but the doctor found only six
injuries on the deceased and out of them there were five
abrasions. Therefore the evidence of PW 5 is contrary to
the medical evidence. The learned counsel also pointed out
that the occurrence took place at about 1.00 p.m. but the
report was given at 7.00 p.m. and therefore the
consultations and the resultant false implication cannot be
ruled out in the case. In any event, according to the
learned counsel the view taken by the trial court is quite
reasonable and the High Court erred in interfering in an
appeal against acquittal.
4. As mentioned above PW 5 is an injured witness. The
doctor who examined him found as many as six injuries. The
first injury was on the back at the level of 9th and 10th
vertebrae measuring 22 cms x 5 cms. The second injury again
was on the left scapula measuring 24 cms x 5 cms. The third
injury was also at the same place measuring 15 cms x 5 cms.
The other three injuries were on the right clavicle shoulder
and knee. The doctor opined that these injuries could be
caused by a cycle chain and the other with the clubs.
Therefore the medical evidence corroborates the version of
PW 5 when he stated that he was beaten by the cycle chain
and clubs. Therefore he having received injuries during the
same transaction cannot be doubted and his presence at the
scene of occurrence is established. No doubt in the cross-
examination he stated that all the accused beaten him
indiscriminately. It may be exaggeration but specific
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overt acts are attributed to A-1, A-3 and A-6. The presence
of injuries on a witness confirms his presence during the
occurrence. That being so, his evidence assumes great
importance. Even if there are some exaggerations, the Court
has to examine the same and scrutinise the evidence. Having
gone through the evidence and the reasoning of the trial
court we are of the view that it erred in discarding the
evidence of PW 5 in toto. Without being present and without
having witnessed the occurrence, PW 5 could not have given
the same version in the earliest report because of mere
motive or out of consultation. The so-called exaggeration
or discrepancies pointed out in their evidence both by the
counsel as well as by the trial court in our view are not
material and would not affect the veracity of the witness.
5. However, having regard to the background, the existing
enmity his evidence has to be carefully scrutinized. Having
gone through his evidence, we are in agreement with the High
Court that A-1, A-3 and A-6 to whom specific overt acts were
attributed must have participated in the occurrence. PW 5’s
evidence is further corroborated by the evidence of PW 8
whose name is also mentioned in the FIR. The version given
by these two witnesses regarding the part played by the
appellants is consistent and is amply corroborated by the
medical evidence. We are of the confirmed view that the
reasons given by the trial court are highly unsound and
erroneous. Therefore the view taken by the High Court in
these circumstances is correct and sound. So far as the
nature of the occurrence is concerned, we are of the view
that a case punishable under Section 302 read with Section
34 is not made out. Undoubtedly there was bitter enmity
between the two groups. If really the intention of the
assailants whoever they may be was to cause the death of
deceased they would have been armed with deadly weapons or
would have inflicted more serious injuries. The doctor, PW
6 who conducted the postmortem noticed on the dead body only
six injuries. The first injury was lacerated wound on the
middle of the head measuring 2 cms x 1 cm and bone deep.
The second injury, a bruise (exhymosis) black coloured on
the antero laternal aspect of the right arm extending from
the right shoulder joint aspect measuring 23 cms x 9 cms.
The third injury was again a bruise (exhymosis) black
coloured on the interior aspect of the left upper arm up to
the left elbow joint measuring 10 cms x 9 cms. The fourth
injury was an abrasion black colour on the left patella
measuring 3 cms x 2 cms. The fifth injury was also abrasion
black colour just middle to the injury No. 4. The last
injury is again only an abrasion on the left side of the
abdomen at the level of the unbelious 6 cms. The doctor
opined that there was extravasation of blood just below the
head injury No. 1. The doctor opined that the death was a
result of shock and haemorrhage. He further stated that
injury to the brain and the vessels was due to external
injury No. 1. Injuries 1, 4 and 5 would be caused by a hit
with a cycle chain. The medical evidence thus shows that
there is only one injury which was serious on the head and
the other injuries were only burised abrasions. If really
as contended by the learned counsel for the State that the
intention of the appellant was to cause death, they would
have inflicted more serious injuries. We find only one
injury on the head which unfortunately resulted in the
extravasation of blood causing injury to the brain. Under
these circumstances it cannot be said that they had common
intention to cause the death of the deceased. However the
injuries inflicted would show that
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they had only knowledge in which case they are punishable
under Section 304 Part 11 read with Section 34 IPC.
6. In the result we confirm the convictions of the two
appellants Panchaiah and Khan Sab under Sections 324/34 IPC
and the sentence of six months awarded thereunder. Their
convictions under Section 302 read with Section 34 and the
sentence of imprisonment for life thereunder are set aside.
Instead they are convicted under Section 304 Part 11 read
with Section 34 IPC and are sentenced to five years’
rigorous imprisonment. The appeal is partly allowed to the
extent indicated above. So far as Shankariah is concerned,
the appeal abates.