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Judgment
S.B. Majage, J.—Since both these cases i.e., Criminal Appeal No. 839/01 connected with Criminal Appeal No. 1132/01 arise out of the common judgment and order dated 19.6.2001, they are taken together and disposed of by this common judgment. The appellant in Criminal Appeal No. 839/01, who was accused No. 2 in S.C. No. 40/2000 on the file of the Court of Prl. Sessions Judge at Raichur, is aggrieved by the judgment and order dated 19/6/01 by which he has been convicted for the offences punishable under Sections 302, 447 and 504 of IPC whereas, the appellant in Criminal Appeal No. 1132/01 is the State, which has challenged the said judgment and order to the extent of acquittal of accused Nos. 1 and 3 for offence punishable u/s 302 read with Sec. 34 of IPC.
Facts, which give rise to the present appeals, are:-
The accused No. 1 is the father of Accused No. 2 and uncle of Accused No. 3. A1 is the uncle of the deceased. A1 has his lend adjacent to the land of the deceased. All are residents of Buddinni Village coming within the limits of Ramdurga Police Station in Deodurga Taluk of Raichur District There was a dispute between A1 and the deceased in connection with a pathway passing through the land of the deceased. So, there was panchayati by elders, including PW-7 Bagaiah, wherein it was decided that A1 and the deceased should not enter each other''s lands for the purpose of pathway.
When things stood so, on 17/11/99 at, about 4.00 p.m., the accused No. 1 along with other two accused was returning home with agricultural implements through the land of the deceased. At that time, the deceased, who was present in his land with his wife namely, Paddamma PW-1 and mother namely, Bheemavva, obstructed the accused, asking as to why they were passing through his land in spite of panchayati decision. For that A1 hurling abuses in filthy language asked other accused to assault the deceased. So, A2 and A3 assaulted the deceased with axes over head and right hand respectively whereas, A1 assaulted the deceased with ''Meli'' (wooden part, of plough) and the wife, daughter and daughter in law of Al assaulted the deceased with hands, Seeing that, PW-1, her mother in law and neighbouring land holders namely, Rangayya PW-6 and his father Hanumappa went near the deceased. Then the accused Nos. 2 and 3 left the place with axe in their hand and A1 left the place by leaving ''Meli'' at the spot but saying ''Bete Bittu''. Then, PW-1 requested PW-6 to bring a cart to save the life of the deceased. Accordingly, PW-6 brought a bullock cart from the Village. So, the deceased was taken in that cart by PWs 1 and 6 to Ramdurga, At Ramdurga, the police, on seeing the deceased still alive, sent them to Deodurga in a tempo or mini lorry driven by PW-10 Mahadevappa. But, when the deceased was taken to Deodurga hospital at about 8.00 p.m., the doctor after examination, declared him dead. So, a complaint as per Exhibit P1 given by PW-1 came to be recorded by PSI of Ramdurga at Deodurga at about 8.15 p.m. On that basis, a case in Crime No. 41/99 under Secs. 143, 147, 148, 302, 323 and 504 IPC read with Sec. 149 IPC was registered and FIR as per Ex. P12 was submitted, Thereafter, investigation was taken over by PW-14 Rajashekhar, Circle Inspector of Police. Then, inquest as per Ex. P2 was conducted over the dead body of the deceased Bheemanna in the presence of panchas, including PW-2 Basawarajaiah. Post-mortem examination was conducted over the dead body by PW-12 Doctor Patil Prabhakar, who submitted PM report as per Ex. P10, and gave opinion as per Ex. P11 when MOs 2 and 3 axes were sent to him on 1.4.2000 for examination. Further, spot mahazar as per Ex P3 was done on 18.11.99 in the presence of panchas examined as PWs 3 and 4 namely, Mounayya and Bheemaraya respectively. So also, recovery mahazars as per Ex. P4 and Ex. P5 about seizure of MOs 2 and 3 was done by PW-14 I.O. when the same were said to have been produced by accused Nos. 2 and 3 on 24.11.99 in pursuance of their voluntary statements made as per Ex. P14 and Ex. P15 given by them respectively after they were arrested on that day at Hire-Kudalagi Village, So also obtained FSL report as per Ex. P13 after sending the seized articles to FSL, Sketch of place of incident as per Ex. P8 prepared by PW-8 Venkat Rao, Junior Engineer, certificate as per Ex. P9 issued by PW-9 M. Suryakant Village Accountant stating that mere is no land in the name of the deceased within the limits of Hungund-Bad were obtained, After recording statements and further statements and completing investigation, the Circle Inspector of Police -PW-14 filed charge-sheet against the accused for offences punishable under Sections 447, 504 and 302 read with Sec. 34 IPC.
After the case was committed to the Court of Sessions, since the accused pleaded not guilty for the charges framed, the prosecution has examined 14 witnesses and got marked 15 documents and 9 material objects in support of it''s case against the accused. However, the accused did not examine themselves or any witness nor got marked any document in their defence. But, their defence as could be made out from the trend of examination appears to be total denial of prosecution case. In other words, according to them, they are innocent and falsely implicated by the complainant on account of the strained relationship between the deceased and accused No. 1. Alter considering the evidence; adduced by the prosecution and hearing arguments, the Trial Court convicted the accused and held A1 and A3 guilty of the offences punishable under Secs. 447 and 504 read with Sec. 34 of IPC, but, gave set off against the imprisonment already undergone by them in judicial custody till the dale of judgment, but acquitted A1 and A2, of the charge punishable under Sec. 302 IPC. However, A2 was held guilty for all the offences and accordingly, he has been convicted to undergo imprisonment for life with fine of Rs. 2,000/- for offence punishable under Sec. 302 IPC but given set off for the offences punishable under Sections 447 and 504 IPC.
So, the Accused No. 2 is before us in Criminal Appeal No. 839/01 challenging his conviction whereas, the State is before us in Criminal Appeal No. 1132/01 challenging the acquittal of Accused Nos. 1 and 3 for offences punishable under Sec. 302 IPC read with Sec. 34 of IPC.
We have heard the learned counsel for the accused in both the appeals. So also, we have heard the learned Addl. SPP. It was vehemently contended for the accused that the conviction of A2 is not proper since the evidence adduced is not satisfactory and believable one to hold that A2 has committed murder of deceased Bheemanna. According to the learned counsel far A2, there was no trespass much less criminal trespass in the land of the deceased and when on the evidence adduced in the case the Trial Court has held not proved the guilt of A1 and A3 for the offence of murder of the deceased, on the same material, the accused No. 2 could not have been held guilty for that offence and, at any rate, having regard to the type of evidence and material available on record, it could be certainly said that the prosecution has failed to bring home the guilt of the accused No. 2 for any offence and consequently, he is entitled to be acquitted by this Court.
So far as A1 and A3 are concerned, it was submitted that the Trial Court has rightly acquitted them of the offence punishable under Sec. 302 IPC as serious doubt arises in the case of the prosecution regarding participation and causing injury to the deceased as is clear from the material on record and consequently, their acquittal for that offence does not require to be disturbed. However the points which have been canvassed for A2 were also laid for A1 and A3 as well in their support.
On the other hand, the learned Addl. SPP has supported the impugned judgment and order so far as they relate to the conviction of A2. But, according to him, the Trial Court has committed an error in acquitting A1 and A3 of the offence under Sec. 302 IPC when Sec. 34 is invoked by the prosecution and when the presence and participation of accused Nos. 1 and 3 in the crime cannot be bifurcated or spitted so as to give any benefit to A1 and AS to hold that they have not committed an offence under Sec. 302 IPC, more so, when the number of injuries found on the deceased are seen with the nature of weapon held by them, as has been brought on record by the evidence adduced Perused the records carefully.
So, the point for consideration is: "Whether the impugned judgment and order passed by the Trial Court are sustainable or require interference?"
Firstly, it may be noted that death of Bheemanna-deceased on account of injuries sustained by him is not much in dispute, In fact it was suggested to PW-1 during cross-examination made for the accused that she received information about 12.00 noon that her husband was murdered. That apart, there its evidence of PW-12 Doctor Patil Prabhakar, who has conducted autopsy over the dead body of deceased and submitted PM report as per Ex. P10. It is categorically stated by PW-12 Doctor that following external injuries were found on the dead body of the deceased, when he conducted post-mortem examination over it:-
Incised wound of size 3" x 0.7.5" 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.
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.
Lacerated wound of size 1" x 0.5" x muscle deep situated in the temporo-maxillary area in left side. Clots present.
Lacerated wound of size 1" x 0.5" x muscle deep behind the pinna of left ear Clots present.
Contusion of size 5" x 1" situated in the left side of the arm directed above downwards from shoulder.
Contusion of size 3" x 1" in the left shoulder obliquely above downwards.
Lacerated wound of size 3" x 0.5" x muscle deep situated in the anterior aspect of the fore-arm in the middle.
Lacerated wound in the middle of the right leg anteriorly, size 1" x 0.5" x muscle deep, clots present.
Contusion in the left side of the back obliquely in the middle, size 3" x 2".
Contusion in the right side of the flank side of the chest, size 3" x 0.5".
Lacerated wound in the medial aspect of the right knee, size 2" x 0.5" x muscle deep. Clots present.
Contusion in the left-side of the chest in the lower end, size 3" X 0.5".
Further, he has stated that on dissection, he noticed the following internal injuries.
Fracture of fronto parietal bone in the middle of the head, size 1" x 0.25" x brain deep, brain matter visible and spilled out. Fracture underneath, brain lacerated, size 1" x 0.5" x 0.5".
Fracture of thoracic rib 9th and 10th 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.
So, in his opinion, the cause of death of the deceased was shock and haemorrhage. He has further stated that the injuries found on the deceased were antemortem in nature. To said witness, it was not even suggested that death of deceased could not have been due to the injuries found on the dead body or, that death of the deceased could be possible by any other way. In view of the said medical evidence., inquest evidence and the stand of the accused as well, we feel it unnecessary to make a detailed discussion to hold that the prosecution has proved that the death of the deceased Bheemanna was homicidal in nature.
The moot question or the main controversy in the case is who caused the injuries found on the deceased. According to the prosecution, A1 to A3 were responsible and in fact, they have caused those injuries on the deceased-whereas, according to the accused, they were not at all present at the spot much less they caused any injury to the deceased. So, this requires to be considered now.
As noted already, the prosecution has examined 14 witnesses. Paddamma PW-1 is the complainant and wife of the deceased, who has also been examined as an eye-witness to the incident in question. PW-2 Basavarajaiah is the pancha for the inquest over the dead body of the deceased conducted on 18.11.99 as per Ex. P2 and supported the prosecution case. PW-3 Mounayya and PW-4 Bheemaraya examined as panchas for spot mahazar & seizure panchanamas as per Exs. P3 to P5 with regard to seizure of axes as per MOs 2 and 3 made in pursuance of the voluntary statements given by A2 and A3 respectively have not supported the prosecution for any mahazar and as such, their evidence is of no help to the prosecution, PW-5 Basavarajappa is a pancha for mahazar as per Ex. P6 prepared with regard to the seizure of blood stained clothes and waist thread of the deceased produced by Police Constable after post mortem examination on 18.11.99. PW-6 is a cousin brother of the deceased. He has been examined as an eye witness to the incident. Here only it could be noted that PW-13 Hanumantharaya who is none other than the brother of PW-6 Rangayya has also been examined as another eye witness to the incident in question, Both these witnesses and the complainant PW-1 have supported the prosecution and the prosecution has relied on the direct testimony of these PWs 1, 6 and 13 for the incident in question.
PW-7 Bagaiah, examined to show that there was a dispute between the accused and the deceased with regard to pathway, has not supported the prosecution. PW-8 Venkat Rao, Junior Engineer has inspected the scene of offence and prepared sketch as per Ex. P8, PW-9 M. Suryakant, Village Accountant of Jagatkal has issued certificate as per Ex. P9 to the effect that the deceased had no land standing in his name within the limits of Hungund-Bad Village. PW-10 Mahadevappa driver of the mini lorry has stated that he had taken the injured Bheemanna from Ramdurga to Deodurga and on the death of the deceased, brought back to Hungund-Bad Village. PW-11 Moinuddin PC of Ramdurga Police Station has stated about securing the motor vehicle to take the injured to the hospital at Deodurga, accompanying the injured in that vehicle to the hospital, watching the dead body and then producing the clothes of the deceased before the investigating officer after its poet, mortem. PW-12 Doctor Patil Prabhakar has been examined to show that he conducted the autopsy over the dead body of the deceased on 18.11.99 and gave a report as per Ex. P10 and thereafter, on 1.4.2000, gave his opinion as per Ex. P11 when MOs 2 and 3 -axes seized in the case were sent to him for giving his opinion with reference to injuries found on the deceased, PW-13 Hanumantharaya has been examined as another eye witness, as noted already. PW-14 Rajashekar is the Circle Inspector of Police, who conducted the investigation and ultimately filed chargesheet against the accused.
Out of 14 witnesses examined in the case, except PWs 3, 4 and 7, others have supported the prosecution end stated on the point or points on which they were examined. So, it requires to be seen, whether the evidence of said witnesses brings home the guilt of the accused persons or not.
It is stated by PW-1 Paddamma, who is none other than the wife of the deceased and complainant besides an eye witness to the incident in question that on the date of incident, she, her husband-deceased and her mother-in-law namely, Bheemavva had been to the land at about 10.00 a.m. Bheemavva was removing weed and her husband deceased was setting right the bund. According to her, in the adjacent land, all the three accused were present along with their women folk namely, Lakshmi, Hanumavva and Yankamma besides a boy by name Ganganna, and they were also removing weed in their land. It is further stated by PW-1 that at about 4.00 p.m., the accused with their people after finishing their work in their land, proceeded towards their house and for that purpose, they came in the land of the deceased and hence, the deceased questioned the accused as to when no pathway is left in his land, how they could enter his land. For that, Accused No. 1 replied that he tame to the land of the deceased only to finish the deceased and suddenly, he lifted ''meli'' and gave a blow on the back of her husband, whereas, A2 gave a blow on the head with an axe and A3 gave a blow on the right hand with axe. Thereafter, according to PW-1 complainant, A2 assaulted her husband on left eye brow, right and left shoulders as a result of which, Bheemanna-deceased fell down and his clothes became blood-stained. Further she told that ultimately, the women folk of the accused assaulted her husband with hands saying that he is still not dead. Then, A2 and A3 left the place with their axes and A1 by saying ''bete bittu'' threw the ''meli'' at the spot and left the place. Thereafter, according to her, PW-6 Rangayya came to the place of incident and she asked PW-6 to bring a bullock cart and the injured Bheemanna was taken to Ramdurga in that bullock cart and later from Ramdurga to Deodurga in a mini lorry and in the hospital, the Doctor found Bheemanna as dead.
PW-6, who is the cousin of deceased has also stated that when the accused along with their women folk entered the lend of the deceased, the deceased asked the accused as to when it was decided not to use the path way, why they have come there and for that, A-1 replied what he (deceased) is going to do or undo and then immediately, lifting the ''meli'' gave a blow on Bheemanna''s left shoulder, A-2 assaulted Bheemanna over his head and A-3 gave a blow on the right hand of Bheemanna. He has further stated that thereafter, A3 with the same axe gave a blow on the right leg knee joint and left eye brow and then Bheemanna fell to ground and the women folk assaulted Bheemanna with their hands saying that he is still alive. It is also stated by him that when he went near that place, all the accused threatened to kill him, if he goes close to them.
More or less, to the same effect, there is evidence of PW-13, who is the younger brother of PW-6. It has come in the evidence of PW-6 Rangayya that his younger brother was also with him in the land. Of course, neither PW-1 Paddamma nor PW-6 Rangayya stated about coming of PW-13 Hanumantharaya to the place of incident either during the course of the incident or after the incident. So, for this reason, it was argued for the accused that the presence of PW-13 near the place of incident or witnessing the incident by PW-13 cannot be accepted or believed. It was also contended for the accused that PW-13 has stated about assault on the deceased with stone by A3 end also about throwing of axes at the spot which has not been stated either by PW-1 or PW-6. According to PW-1 and PW-6, it was only ''meli'' MO - 1 which was left at the spot by A1 and MOs 2 and 3 axes were carried away by A2 and AS. So, it was vehemently contended for the accused that witnessing the incident by PW-6 and PW-13 cannot be believed and so also the presence of PW-1 at the place of the incident or witnessing the incident by PW-1 for the reason that just a month earlier to the incident itself, she had delivered a child and hence, it was unnatural to believe that such a lady had come to the land.
Before going to consider the evidences of PWs I, 6 and 13 as eye witnesses to the incident, it requires to be noted that, in a case where there are eye witnesses to the incident, the Court has to adhere to two principles namely, (a) Whether it was possible for the witnesses to be present? And, (b) Whether there is anything inherently improbable or unreliable in their evidence, as has been held by the Supreme Court in the case of State of U.P. Vs. Smt. Noorie alias Noor Jahan and others, .
So, firstly, we consider as to whether the presence of said witnesses was possible near the place of incident or not. Admittedly, PW-1 Paddamma is the wife of the deceased. Of course, it is on record that she had delivered a child just a month earlier to the incident, But, there is nothing on record to show that apart from the deceased, there was any other male member in that family. If this is kept in mind, simply because PW-1 had delivered a child a month earlier to the date of incident, it cannot be assumed that she could not have come to the land along with her husband and mother in law for doing agricultural work in the land. In fact when suggested, PW-1 has categorically denied that she was not going to the land for work when her fourth daughter was one month old. Further, it may not be out of place to note that it was PW-1, who secured a bullock cart to the land through PW-5 Rangayya and along with Rangayya, she took her injured husband to Ramdurg in the bullock cart and from Ramdurg, she took her husband to Deodurg hospital in a mini lorry. It is also stated by PW-6 that PW-1 had asked him to bring a buttock cart from the Village and accordingly, he had brought a bullock cart to the place of incident and took the injured to Ramdurg. Same is the evidence of PW-13 Hanumantharaya also. So, the presence of PW-1 in the land at the time of incident in question cannot be doubted. When once her presence in the land cannot be doubted, her witnessing the incident also cannot be doubted.
Of course, the mother of deceased namely, Bheemavva has not been examined in the case. But, simply because she has not been examined in the case statement of PW-1 does not become doubtful. It is true that for a particular point, there need not be a number of witnesses. Further, in the present case, PW-1 has been examined along with other two witnesses examined as PW-6 and PW-13. Of course, PWs 6 and 13 are brothers interse and they are also related to the accused as well as to the deceased. It is true that strained relations exist between accused on one side and PWs 6 and 13 on the other side regarding a pathway. So also, it is true that there was dispute between the deceased and the accused regarding the pathway, Further, it is on record that said dispute regarding pathway had been settled by elders and there was a compromise between the parties and in that compromise, it was decided that one should not enter another''s land for the purpose of making use of it as pathway. This part of the evidence adduced by prosecution with regard to pathway and facts relating to pathway, as spoken to by PWs 1 and 6, have remained unchallenged by the side of the accused.
It is true that relations between the deceased and the accused were not good, as is placed on record. But, that could form motive for the accused also to commit the crime. Of course, on account of strained relations between the accused and the deceased, it was argued for the accused that they have been falsely implicated in the case. But, this aspect of the matter requires to be considered in the totality of the circumstances and material on record and net in isolation, Here itself, it may not be out of place to note that PW-1 Paddamma appears to be a straight forward rustic lady because she has stated about the strained relations between her husband/deceased and the accused with regard to pathway and narrated the incident as village lady could depose. Further, the evidences of PW-1 is corroborated by the evidence of PWs 6 and 13.
Of course it was argued for the accused that witnessing the incident by PWs 6 and 13 cannot be believed in view of the evidence of PW-1 in not mentioning the name of PW-13. It is true that PW-1 and PW-5 have not stated the name of PW-13 as another person who also had witnessed the incident. Further PW-13 has stated about assaulting deceased with stone by A3 which has not been add either by PW-1 or by PW-6. When this is considered with the absence of mentioning of name of PW-13 by PWs 1 and 6, witnessing the incident by PW-13 becomes doubtful. Still, the evidence of PWs 1 and 6 remains on record as the direct evidence of eye witnesses to the incident in question.
It was argued for the accused that, in view of the statement of PW-1 that PW-6 came to the place of incident after the incident, PW-6 cannot be taken as an eye witness to the incident For this, it may be noted that PW-6 was present in the adjacent land to the land of the deceased, where the incident had taken place, and presence of PW-6 in his land, which adjoins the land of the deceased has not been challenged. So, presence of PW-6 in his land cannot be doubted. Even if assumed that PW-6 reached the place of incident after the deceased was assaulted, then also the possibility of PW-6 seeing the incident while going from his land towards the place of incident cannot be ruled out. So, simply because PW-1 has stated that PW-6 reached after the accused assaulted her husband it cannot be said that PW-6 had not seen the incident at all, particularly when it is not in the evidence of PW-6 that he witnessed the incident standing in the land of deceased or near the place of incident. What has come on record is, that PW-6 was present in his land and after hearing galate voice, he went towards the place of incident and saw the incident which was going on in the land of deceased. So, in the facts and circumstances besides the material on record, witnessing the incident by PW-6 cannot be ruled cut.
Thus, PWs 1 and 6 could be taken as the persons, who actually witnessed the incident in question. Of course, there are some improvements or embellishments in the statements of said PWs 1 and 6 with regard to the number of blows given by accused persons on the deceased. But, it requires to be noted that one hardly comes across a witness, whose evidence does not contain some exaggerations or embellishments. In fact, in the case of Sukhdev Yadav and Others Vs. State of Bihar, , the Supreme Court has observed thus:-
It is indeed necessary, however, to note that there is hardly a witness whose evidence does not contain some amount of exaggeration or embellishment and sometimes, there would be a deliberate attempt to offer the same and sometimes the witnesses in their anxiety to do better from the witness box detail out an exaggerated account,
In the said case, the Supreme Court extracted! the following passage from the decision in the case of Leela Ram (Dead) Through Duli Chand Vs. State of Haryana and Another, relying upon its earlier decision in the case of State of U.P. Vs. M.K. Anthony, :-
There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.
At this stage, it may also be useful to note that there are totally 12 injuries found on the dead body of the deceased. Out of them, two were incise and in the remaining injuries, five were lacerated ones and five were conditions. It is specifically stated by PW-12 Dr. Prabhakar that injury Nos. 1 and 2 - incise wounds could be caused by weapon like MOs 2 and 3 - axes. Similarly, the other injuries could be caused by giving blow with hard and blunt objects. It is on record that accused 2 and 3 used axes whereas, A1 used ''Meli''. So, injuries found on the dead body correspond with the weapons used by the accused in the incident in question as stated by PWs 1 and 6. Further, the evidence of PW-14 Rajashekar, Circle Inspector of Police shows that after the accused 2 and 3 were arrested on 24/11/99 at the instance and on the information furnished by accused Nos. 2 and 3 as per Ex. P14 and P15 respectively, axes MOs. 2 and 3 were seized and Mahazars at Ex. P4 and P5 were drawn. Of course, the panchas for the said mahazars examined as PW-3 and PW-4 have not supported the prosecution. But, that itself cannot be taken to discard or disbelieve the seizure of MOs 2 and 3 by the Investigating Officer. At this juncture it may also be relevant to note that the said axes, when sent to FSL for examination, were found to have blood stains. Of course, with regard to the origin of the group of blood found on the said axes, there is no report, but the seizure, if seen, with the presence of blood, could be taken into consideration in view of the other materials available on record and specific evidence of I.O., if his evidence is found satisfactory. In this regard, reference can be had to the decision of the Supreme Court in the case of AIR 1978 1511 (SC) .
A feint attempt was also made for the accused to have support from the evidence of PW-12 Doctor Patil Prabhakar as he has stated that the death of the deceased might have taken place at about 12 noon on 17/11/99 since, according to them, murder of the deceased had taken place at about 12 noon and not at 4.00 p.m., as has been suggested to PW-1. It is true that the statement of PW-12 suggests that the murder could have taken place at about 12.00 noon on 17/11/99. But, that statement has to be considered in the context of his earlier statements wherein, he has stated that death of the deceased was within 24 hours and more than 12 hours of the PM examination conducted over the dead body. Admittedly, PM examination over the dead body of the deceased was conducted on 18.11.99 from 940 a.m. to 1040 a.m. If the said time is kept in mind with the statement of Doctor PW-12, the time of probable death of the deceased could be between 12 to 24 hours earlier to the PM examination. So, there will not be any doubt with regard to the case of prosecution because PWs 1 and 6 have stated in their evidence that the incident had taken place at about 4.00 p.m. and death of the deceased was noticed at 8.00 p.m. when the deceased was taken to the hospital at Deodurga on 17.13.99. If the death of the deceased had taken place even twelve hours earlier to the PM examination of the dead body, the matter would have been different, but not now, That apart, evidence of PW-12 Doctor Patil Prabhakar i.e., his opinion about time of death which is an oscillating opinion, cannot be preferred against the direct evidence of PWs 1 and 6. Further, in the present case, even there is no such inconsistency between the medical and oral evidence so as to give undue weight to the evidence of PW-12 to discard the evidence of PWs 1 and 6 regarding the time of incident.
Of course, reliance was also placed on a certificate issued by PW-9 Village Accountant as par Ex. P9 wherein, it is mentioned that no land stand in the name of the deceased Bheemanna within the limits of Hungund-Bad Village. But, the possession of the land by the deceased, where the incident had taken place, as stated by PWs 1 and 6 has not been challenged at all and hence, the said record or evidence is of no help to the accused. This is because the questions to be considered are whether the accused had entered the land in possession of the deceased i.e., the accused committed criminal trespass on 17.11.99 and then caused injuries to the deceased or not. So also, whether common intention was shared by all the accused in the murder of the deceased, which was the result of the injuries caused to him in the accident in question, If these things are kept in mind and the evidence of PWs 1 and 6 is considered, it goes to show that the accused came together and committed criminal trespass in the land in possession and held by the deceased and when the deceased confronted the accused about their coming into his land in spite of the panchayati held, the accused took law in their hands and assaulted the deceased without any provocation from him, caused fatal injuries and committed murder of the deceased Bheemanna. So, in the fact situation, the common intention of all the accused in committing murder of deceased could be gathered on account of fatal injury Nos. 1 and 2 referred to above caused to the deceased besides the presence and active participation of A1 and A3 in the incident held proved by the prosecution, So, the accused Nos. 1 and 3 cannot escape from the responsibility which could be fastened to them by virtue of Sec. 34 of IPC, particularly in view of number of injuries found on the deceased.
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 Secs. 447 and 504 reed with Sec. 34 of IPC and A-2 has committed the offence punishable under Sec. 302 of IPC, it has erroneously held that A1 and A3 cannot be held guilty for the offence of murder punishable under Sec. 302 of IPC, even though, Sec. 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 Al and A3 are concerned with regard to their guilt for the offence under Sec. 302 read with Sec. 34 of IPC.
In the result and for the foregoing reasons, Criminal Appeal No. 839/2001 filed by A2 is dismissed whereas, Criminal Appeal No. 1132/2001 filed by the State is allowed and Accused Nos. 1 and 3 are held guilty for the offence punishable under Sec. 302 read with Sec. 34 of IPC also and accordingly convicted and sentenced to undergo imprisonment for life like that of A2.
Accused Nos. 1 and 3 got set off for the offences under Sections 447 & 504 read with Sec. 34 of IPC in view of the impugned judgment and order passed fry it So, now they are directed to surrender for undergoing the sentence of life imprisonment awarded by us today and directed the jurisdictional police to arrest A1 and A3 and take them to custody forthwith to serve their sentence.
At this stage, learned counsel for Al and A3 made, an oral request to suspend the sentence on the ground that they intend to go in appeal to the Supreme Court in SLP. So, heard. However, having regard to the findings and conclusion arrived at by us, in the fact situation that A1 and A3 also shared common intention with A2 in the commission of murder of deceased Bheemanna, we decline to suspend the sentence. Accordingly, the oral request made for A1 and A3 is refused.