Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
PETITIONER:
VISHWANATH SHANTHAMALLAPPA DHULE & ANR.
Vs.
RESPONDENT:
STATE OF KARNATAKA
DATE OF JUDGMENT: 12/08/1997
BENCH:
G. T. NANAVATI, S. P. KURDUKAR
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
NANAVATI, J
This appeal by special leave is directed against the
judgment of the Karnataka High Court in Criminal
Appeal No. 555 of 1980 whereby it confirmed the conviction
of the appellants under Section 302 read with section 34 IPC
recorded by the Sessions Judge, Bijapur in Sessions Case No.
29/80.
The prosecution case was that on 3.12.1979 , at about
8.30 or 9.00 a.m., while deceased Baburao and his son
Sharanappa were proceeding from their house to their field
carrying food for their father who was staying in the field
and when they were passing through the field of Suleman, the
appellants along with three others assaulted Baburao.
Appellant No. 2 gave a blow with an axe on the neck of the
deceased as a result of which he fell down and soon
thereafter died. On seeing this assault on his father
Sharanappa, who was then a child of about 5 years, ran away
towards the village. P.W.4 Bhimashankar, who was returning
from his field to the village, saw this assault on the
deceased who was distantly related to him. He raised a cry
whereupon the accused ran away. he went near Baburao and
found that he was already dead. He started weeping and
proceeded further towards the village. On the way he met
Irappa (PW5). Irappa asked him why he was weeping P.W.4 told
him that accused persons had killed Baburao. On the way he
also met one Shivagondappa P.W. 6 and informed him also
about the assault on the deceased by the accused. He
thereafter went to the house of his uncle Guralingappa P.W.8
and informed him about the incident. He then along with
other relatives went back to the place where Baburao was
lying dead. P.W. 3 father of the deceased then requested
P.W. 8 to go and lodge a complaint with the police. He
reached Police Station at Indi situated 30 Km. away from
that village and lodged his complaint. After completing the
investigation the police charge sheeted all the five
accused. The Trial Court convicted appellant Nos. 1 and 2
only for the offence punishable under section 302 read with
section 34 IPC. The other accused were acquitted. In
convicting the appellants, the Trial Court relied upon the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2
evidence of P.W.4 Bhimashankar, which received corroboration
from the evidence of P.W.5 Irappa and P.W.6 Shivagondappa.
The High Court after reappreciating the evidence found
that the evidence of P.W.4 was quite reliable as no
infirmity appeared in his evidence. The High Court also
found that his evidence was fully corroborated by the
evidence of P.W.6 It therefore, confirmed the conviction and
dismissed the appeal.
What is contended by the learned counsel for the
appellants is that the evidence of P.W.4 ought not to have
been relied upon as there was enmity between the deceased
and the accused and this witness was the cousin of the
deceased. He also submitted that the prosecution has failed
to explain how the burn injuries, noticed by the doctor who
performed the post mortem, were received by the deceased.
There was delay in lodging the First Information Report and
starting the investigation. Therefore, the appellants should
have been given the benefit of doubt. We find no substance
in any of these contentions. Though P.W.4 was the cousin of
the deceased it was not even suggested to him in his cross
examination that he had any reason to falsely involve the
accused. We do not find any material on record on the basis
of which it can be said that he had shared the enmity of the
deceased with the accused. Significantly, his presence at
the scene of offence was not even challenged by the accused.
The evidence discloses that immediately after seeing the
assault on the deceased he went to the village and informed
those who met him on the way about causing of the death of
the deceased by the accused. We do not find any infirmity in
his evidence. The courts below were, therefore, fully
justified in placing reliance upon his evidence. Once his
evidence is believed it establishes that appellant No. 2 had
given an axe blow on the neck of the deceased. It is no
doubt true that no blow was given by appellant No. 1 to the
deceased. Possibly that became unnecessary as after
receiving the first blow the deceased had fallen down on the
ground. Appellant No. 1 with appellant No.2 had gone
together and assaulted the deceased. Appellant No. 1 had
also raised his axe to assault the deceased. Therefore, his
conviction under section 302 read with section 34 IPC cannot
be said to be improper. In view of the distance between the
place where the in evidence took place and the police
station it cannot be said that there was any delay either in
lodging the information or in starting the investigation. As
regards the burn marks noticed by Dr. Bagali (P.W.9) , Who
had conducted the post mortem examination and who was
declared hostile, no such injuries were noted while inquest
panchnama was prepared and no question in that behalf was
put to P.W.1 Basanna who had acted as a panch witness.
Moreover as deposed by the doctor, they were post mortem
injuries. Therefore, that circumstance cannot be considered
as sufficient to create any doubt regarding veracity of
P.W.4.
The appeal is, therefore, dismissed. Bail bonds are
ordered to be cancelled.