SEENA@ SRINIVASAversusSTATE OF KARNATAKA

                       [2014) 6 S.C.R. 1026


A                     SEENA@ SRINIVASA
                                v.
                     STATE OF KARNATAKA
              (Criminal Appeal No. 165 of 2004 etc.)
                           JULY 02, 2014
B
    [SUDHANSU JYOTI MUKHOPADHAYA AND RANJANA
                PRAKASH DESAI, JJ.]

         Penal Code, 1860: ss.302134. 326 - Murder - Allegation
C   that accused 1 to 3 went with choppers where victim-deceased
    was grazing cattle and attacked him - PW1 rushed towards
    deceased but he was chased by the accused - PW1 ran upto
    land of PW2 - Accused started pelting stones at PW-1 - On
    intervention of PW2, accused left - Victim-deceased
D   succumbed to injuries - Accused no. 1 died during trial -
    Conviction by trial court u/ss. 302134 - High Court modified
    convicrion of accused no.2 to s.326 and acquitted accused
    no. 3 - On appeal, held: The evidence of PW 1 regarding
    participation of accused no. 1 and 2 and their presence nearby
E   the place of incident and immediately after the incident found
    corroboration from the evidence of PW 2, an independent
    witness - No enmity was attributed to him and nothing was
    brought out in the cross-examination as to why PW2 would
    falsely implicate accused no. 1 and 2 in the commission of
F   the offence - There was no evidence to suggest that some
    other persons were involved in the commission of the offence
    - Recovery of choppers and blood stained clothes made at
    the instance of accused - As regards accused no. 2, there was
    ample evidence to prove his presence and participation in the
G   commission of offence so he was rightly convicted by trial
    court for the offence uls. 302 - High Court though agreed that
    the prosecution proved the presence of accused no.2 in the
    commission of the qffence, wrongly held that the charge ul
    s.302 was not proved and wrongly formed an opinion that the

H                             1026
 SEENA @ SRINIVASA v. STATE OF KARNATAKA                 1027


offence uls.326 /PC was established against accused no. 2 -       A
The impugned judgment in so far as accused no. 2 was
concerned set aside - Prosecution witnesses did not speak
about any specific act or presence of accused no.3, at the
place of incident and, therefore, the part of the said judgment
acquitting accused no.3 upheld.                                   B

     Prosecution case was that on the fateful day, PW-1
sent his brother (the deceased) along with PW-7 to police
station to lodge report regarding the threat caused to him
by accused no. 1, 2 and 3. The deceased lodged the
report and returned to the village at around 12 noon p.m.         C
The deceased accompanied PW-1 to graze cattle. While
the cattle were grazing, the deceased sat on a rock. At
that time, accused no. 1 to 3 went to the spot armed with
choppers. Accused no. 1 hit the deceased on his head
with the choppers. Accused no. 3 hit the leg of the               D
deceased. The deceased screamed which attracted the
attention of PW-1. PW-1 rushed towards his brother-
deceased but he was chased by accused no. 1 and 2
upto the land of PW-2. PW.1 ran and sought shelter.
Accused 1 and 2 stood outside the land and continued              E
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 intervened and asked them to go away.
Thereafter, PW.1 went back to the place of occurrence.
He found the deceased dead. Again he returned to his              F
village and informed the villagers. Accused no. 1 died
during the trial. The trial court held accus.ed no. 2 and 3
guilty for offence punishable under Section 302/34 IPC.
The High Court acquitted accused no. 3 and partly
allowed the appeal filed by accused no. 2 by modifying            G
the conviction under Section 302 IPC to the offence under
Section 326 IPC.
    Accused no. 2 filed instant appeal challenging
conviction under Section 326 IPC. The State filed appea.1
                                                                  H
   1028    SUPREME COURT REPORTS             [2014] 6 S.C.R.


A challenging the acquittal of accused no. 3 and
  modification of conviction of accused no. 2.
       Disposing of the appeals, the Court
       HELD: 1. PWs.1 and 2 gave similar statements that
B accused no. 1 and 2 chased PW.1 up to the land of PW.2.
  PW.2 further deposed that the next day police arrived and
  checked his garden land which was pointed out by PW.1.
  PW.1 acted as witness to the seizure of stones used by
  the accused to assault him. PW.7 was a witness to
c seizure of material objects. i.e. stones from the land of
  PW.2. The witness spoke clearly that he was summoned
  by the police to the land of PW-2 which was pointed out
  by PW.1 and around 2.00p.m. mahazar was prepared
  seizing stones. PW.8 was working as Medical Officer who
o had conducted autopsy on the dead body. The injuries
  nos. 1 to 10 were described as ante mortem in nature by
  the doctor. According to PW.8-doctor, daath was due to
  shock and haemorrhage as the result of injury nos.1 to
  10. These injuries were caused by external violence. While
E describing the injuries, PW.8 deposed that injury nos. 1
  to 8 were incised wound and could be caused by object
  like chopper. According to him injury nos. 1,2 and 3 could
  also be caused by similar object. PW.9 was a witness to
  inquest. He deposed that police summoned him to the
  spot where dead body was lying. Body was near Hutta
F (anthill) and a sickle was also lying nearby. It was blood
  stained. There was also a kukke (basket). 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. Like other
G witnesses even this witness maintained consistency in
  statement with regard to aspects spoken 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. [Paras 19 to 22) [1037-
H F-H; 1038-A-C; 1039-D, G-H; 1040-A-D]
    SEENA@ SRINIVASA v. STATE OF KARNATAKA 1029


     2. PW.11 was another important witness of the            A
prosecution as he told about recovery of material object
at the instance of the accused. In the presence of PW.2,
CW.25 and CW.27, accused no.1 guided the police to
Kharab land from under banyan tree and karegidda (head
of dry leaves) he took out chopper and produced before        B
the police. The said chopper was blood stained. 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 and produced the same which was
seized under mahazar. He told about accused no.3              c
guiding police to another spot and from under the
banyan tree chopper. PW.11 further stated that accused
no.1 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.
                                                              0
Accused No. 2 guided police to his house and produced
shirt. Accused no. 3 guided police to his house and
produced shirt. According to witness, accused no. 2
again guided the police to the land of PW-2 and produced
a club. [Paras 23, 24] [1040-E-H; 1041-A-D]
                                                              E
        3. According to PW.1 when he was grazing h1s 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       F
  PW-2. He narrated the incident not only to PW.2 but also
 to PW.6 and his wife. Though PW.1 specifically stated that
  all the three accused assaulted his brother with chopper.
1 PW.2 did not speak any specific act or presence of
1
  accused no.3. According to Ex.P.1, PW.1 stated in his       G
  complaint that Accused Nos. 1 and 2 chased him and he
  entered the garden of PW.2. 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 raised certain doubt   H
    1030   SUPREME COURT REPORTS             [2014] 6 S.C.R.


A regarding the presence of accused no. 3, therefore, some
  reasonable doubt arises as to the presence and
  participation of accused no.3 in the commission of the
  offence. The prosecution has failed to prove the presence
  and participation of accused no.3 in the commission of
B the offence and, therefore, accused no.3 was rightly
  acquitted by the High Court of the offence under Section
  302 IPC. 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
c incident found corroboration from the evidence of PW;2,
  an independent witness. No enmity was attributed to him
  and nothing was 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 was no
  evidence on record to suggest that some other persons
0
  involved in the commission of the offence. Therefore, in
  so far as accused no. 2 was concerned, there was ample
  evidence to prove his presence and participation in the
  commission of offence so accused no. 2 was rightly
E convicted by the trial court for the offence under Section
  302 IPC. 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 wa'S not proved. The High Court
  wrongly formed an opinion that the offence under
F Section 326 IPC has been established against the
  accused no. 2. The impugned judgment in so far as
  accused no. 2 was concerned is set aside. The part of the
  said judgment acquitting accused no.3 is upheld. [Paras
  25 to 30] [1041-E-H; 1042-A-GJ
G
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 165 of 2004.
      From the Judgment and Order dated 09.12.2002 of the
  High Court of Karnataka at Bangalore in Criminal Appeal No.'
H 326 of 199.
  SEENA @ SRINIVASA v. STATE OF KARNATAKA 1031


                                WITH                              A

Crl. A. Nos. 166-167 of 2004.

   G.V. Chandrashekhar, N.K. Verma, Anjana
Chandrashekar, Sanjay R. Hegde, V.N. Raghupathy, Ranjan
                                                                  B
Mukherjee (A.C.), S. Bhowmick, for the appearing parties.

    The Judgment of the Court was Delivered by

     SUDHANSHU JYOTI MUKHOPADHAYA, J. : 1. These
appeals are directed against the judgment dated 9th               c
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 Addi. District and Sessions Judge, Bangalore
Rural District, Bangalore in S.C. No. 42/88 by acquitting         D
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     E
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       F
accused no. 2 Seena @ SrinivC1Sa from the offence punishable
under Section 302 IPC to offence punishable under Section
326 IPC:·

     3. Original accused no. 1 Chaluvaiah @ Chaluva and           G
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
                                                                  H
    1032    SUPREME COURT REPORTS                  [2014] 6 S.C.R.


A   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.
8
          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
C   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
D   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
E   in Mandekal where Channegowda was sitting, accused no.3
    lifted the chopper and hit on the left leg of Channegowda
    causing injury 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
F   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
G 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
H
  SEENA@ SRINIVASA v. STATE OF KARNATAKA 1033
     [SUDHANSU JYOTI MU~HOPADHAYA, J.]
Ganagadharappa CW.3. Accused no. 1 started pelting stones · A
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 wat~r to be given
to his brother deceased-Channegowda, when he returned to B
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 c
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 0
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-         E
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   F
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 medjcal examination with a memo. After
autopsy, clothes were seized.                                     G
    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
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    1034   SUPREME COURT REPORTS               [2014) 6 S.C.R.


A March, 1988, the Cl 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
B 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
c them in safe custody. They were interrogated and 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
0 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 M0.8. Mahazar was
E 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 M0.6 and the same
  were seized under Ex.P-12. Seena also gave a voluntary
  statement which also lead to recovery of another chopper.

F      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
G 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
H
  SEENA @ SRINIVASA v. STATE OF KARNATAKA 1035
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]
charges leveled against them, trial was fixed. Some witnesses        A
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.
                                                                     B
     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.
                                                                     c
       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.
                                                                     D
      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         E
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-             F
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        G
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          H
         1036    SUPREME COURT REPORTS                 [2014] 6 S.C.R.


     A   contradictions in their statements and on the basis of such
         statements the appellant-Seena-accused no. 2 cannotbe 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
     8
         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
     C   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.
     D   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
     E   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
     F   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
     G   he 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.
     H
.,
-- SEENA @ SRINIVASA v. STATE OF KARNATAKA 1037
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Accused 1 and 2 stood outside the land and continued to pelt      A
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              B
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-            C
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      D
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     E
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 regarding accused no. 1 and 2 were chasing
PW.1 up to the land of PW.2. PW.2 Gangadharappa had               F
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       G
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
                                                                  H
    1038    SUPREME COURT REPORTS                   [2014] 6 S.C.R.


A 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
B 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
C 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
D 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:
E
        i) Incised injury palmer aspect of proximal pharynx or left
        index finger situated horizontally measuring 1" x Y:z''x 1Yi''.

        ii) Incised wound palmer aspect of proximal pharynx of left
        middle finger Y:z''x Y:z''x Y2" situated horizontally.
F
        iii) Incised wound palmer aspect of proximal pharynx of left
        right finger 1"xY:z''xY:z'' situate obliquely.

        iv) lnciseid wound inner aspect of left knee 1Y2"xY2"xY2".

G       v) Incised wound outer aspect of left ankle about 2" above
        lateral malleolus situate horizontally measuring
        2Y2"x1 Y2"x1" a lower end of left fibula bone cut along with
        the wound.

H .
  SEENA @ SRINIVASA v. STATE OF KARNATAKA 1039
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]
    vi) Incised wound over left calf area at the junction of lower     A
    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 1%"x%"x %".
     Viii) Incised wound situated horizontally over inner aspect       B
     of right leg about 3% above medical malleolus measuring
     1"x1 %"x1 "and 1%" .

     ix) Incised wound outer lower part of right leg 3"x2"x2"
     cutting lower end of fibula bone on the right side.
                                                                       c
     x) Incised wound over the right shin bone at the junction of
     lower .1 /3rd and upper 2/3rd obliquely situated 1Y-i"x 1Y-i"x
     1%". '•.

     The injuries nos. 1 to 10 noticed above described as ante .
                                                                 0
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 healthy but pale. Heart empty, Abdomen showed
valve, petitionlum, mouth, pharynx, esophagus were also found
healthy. Stomach contained undigested food particles. Genitals E
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   F
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.
                                                                       G
     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 M0.6. According to him injury
nos. 1,2 and 3 could also be caused by similar object like
M0.6(a).                                                               H
    1040     SUPREME COURT REPORTS                  [2014] 6 S.C.R.


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
B mahazar seizing both items under Ex.P.7. The sickle was
  marked as M0.5. 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
c stained and recorded in mahazar. Like other witnesses even
  this witness maintained consistency in statement with regard
  to aspects spoken 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
0
  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
E the instance of the accused. According to him, Kudur police
  officials summoned him around 1O.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
F 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
  M0.8. It was seized under Mahazar Ex.P.11. The said chopper
G was blood stained and marked as M0.6(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 M0.6 and produced the same which was seized under

H
  SEENA@ SRINIVASA v. STATE OF KARNATAKA- 1041
     [SUDHANSU JYOTI MUKHOPAE>HAYA, J.]
mahazar Ex.P.12. He told about accused no.3 guiding police         A
to another spot and from under the banyan tree chopper M0.7
which was seized under Ex.P.13, was recovered.

    24. PW.11-Mariranga!ah further stated that accused no.1-
Chaluvaiah of his own stated that he would give his clothes. He    8
guided police to his house. F,·om a drum he took out the
panche and other clothes which were stained with blood. They
were seized under mahazar Ex.P.14. The shirt was marked as
M0.19 and the panche marked as M0.20. Accused No. 2-
Seena guided police to r:is house and produced shirt which is      C
M0-21. The same was seized under Ex.P.15. Accused no. 3-
Ramanna guided police to his house and produced shirt M0.22
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 M0.23.                                       D

       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            E
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        F
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            G
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   H
    1042    SUPREME COURT REPORTS                [2014) 6 S.C.R.


A   the 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
8
  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
C 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,
      '
D 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.

E        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
F   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
G concerned. The part of the 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.
H
  SEENA @ SRINIVASA v. STATE OF KARNATAKA 1043
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     Criminal Appeal No. 165 of 2004 filed by the accused no.         A
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           8
into custody if he is on bail, for undergoing the remainder period
of sentence.

Devika Gujral                                  Appeals disposed of.