VITHAL LAXMAN CHALAWADI & ETC.versusSTATE OF KARNATAKA REP. BY P. PROSECUTOR

                    [2010] 12 S.C.R. 574


A            VITHAL LAXMAN CHALAWADI & ETC.
                                 V.
      STATE OF KARNATAKA REP. BY P. PROSECUTOR
            (Criminal Appeal Nos. 69-70 of 2008)

                       OCTOBER 19, 2010
B
        [MARKANDEY KAT JU AND T.S. THAKUR, JJ.]

         Penal Code, 1860 - ss. 302134 and 323 - Murder and
   voluntanJy causing hurt - Altercation between two families -
c  Assault by accused persons resulting in death of deceased
   and injuries to mother and brother of deceased - Conviction
   of two accused u/ss. 323 and 324 - Acquittal of remaining
   four accused - High Court convicting accused nos. 1 to 4 u/
   s. 302134 and acquitting the remaining two - On appeal, held:
0 Strained relationship between two families sufficiently
   established - Homicidal death of deceased - Testimony of
   injured eye-witnesses that accused no .. 1 responsible for
   inflicting injuries resulting in death of deceased - No overt
  ·act attributed to accused no. 3 except that he gave chappel
E blow to mother of deceased - Thus, conviction and sentence
   uls. 302134 of accused no. 1 upheld whereas that of accused
   no. 3 set aside - Conviction of accused no. 3, uls. 323 upheld
   but sentence reduced to the period already undergone -
   Accused no. 2 acquitted of all charges on benefit of doubt -
   Evidence - Witnesses.
F
       According to the prosecution case, 'R' was engaged
  to get married to 'P'-sister of accused nos. 1 to 4 but he
  instead married younger sister of 'P' without the consent
  of the accused persons. When the accused persons
G questioned 'R' about the same, it resulted in an altercation
  between the twe> parties. It is alleged that accused 'VL'
  assaulted 'R' with a knife which resulted in his death. PW-
  1, brother of 'R' and PW-6, mother of 'R' were also
  assaulted. Accused No. 3 gave a chapel blow to PW-6.
H                               574
    VITHAL LAXMAN CHALAWADI & ETC. v. STATE OF           575
        KARNATAKA REP. BY P. PROSECUTOR

The trial court convicted two accused under Section 323         A
and Section 324 IPC and acquitted the remaining four. In
appeal, the High Court convicted accused Nos. 1 to 4 for
the commission of offence punishable under Section 302
read with Section 34 IPC and sentenced them to
imprisonment for life. The remaining accused were               s
acquitted. Therefore, the appellants filed the instant
appeals.
    Disposing of the appeals, the Court
      HELD: 1.1 The relationship between the two families       C
was strained on account of the refusal of the deceased
to marry 'P' and in preference tying the knot with the
younger sister of the accused without their consent,
which has been sufficiently established by the material
 on record. It was also not disputed either before the High
                                                                0
 Court or even before this Court that deceased-'R' died a
 homicidal death having suffered as many as 17 injuries
 out of which two. were fatal. PW-16, doctor, noticed the
 injuries in the course of post-mortem examination. The
 prosecution relied upon the depositions of four eye-
 witnesses to the incident in support of its case. PW-1 and     E
 PW-6 are the brother and the mother respectively of the
 deceased who were themselves injured in the incident.
 PW-7 and PW-8 reached the spot when they heard noise
,comi'ng out of the house of the deceased only to find
 accused nos. 1 to 4 assaulting the deceased with a knife.      F
 A careful analysis of the depositions of the eye-witnesses
 leaves no manner of doubt, that 'N' who has since died
was the first to assault the deceased with his knife. The
version given by the injured eye-witnesses PW-1 and PW-
 6 that appellant, 'VL' had then taken the knife from 'N' to    G
 inflict injuries on the body of the deceased is credible and
 was rightly relied upon by the High Court. Therefore, there
 is no hesitation in holding that 'VL' was responsible for
               ...
                                                                H
    576    SUPREME COURT REPORTS            [2010] 12 S.C.R.


A inflicting injuries attributed to him by the eye-witnesses
  that resulted in the death of the deceased. Thus, the
  conviction and sentence imposed upon appellant 'VL' for
  the offence under Se.ction 302/34 IPC recorded by the
  High Court is upheld. [Para 7) [580-G-H] [581-A]
B     1.2 As regards the role of appellant No. 3-'G' the
  evidence on record suggests that he gave a chappal
  blow to PW-6. There is no other overt act attributed to
  appellant No.3 to have joined the melee when tempers
  ran high. The allegation that he exhorted accused Nos.
C 1 and 2 to kill the deceased was not satisfactorily proved
  to justify his conviction for murder with the help of
  Section 34 IPC. The nature of the evidence on record and
  the role that appellant No. 3 is alleged to have played,
  does not establish that he shared the common intention
o with 'N' and 'VL' to commit the murder of deceased 'R'.
  The conviction of appellant No. 3 for the offence of
  murder punishable under Section 302 IPC read wit:h
  Section 34 IPC i.s not sustainable. The evidence, however,
  proved beyond a reasonable doubt that appellant No. 3
E assaulted PW-6 with a chappal. His conviction under
  Section 323 IPC by the trial court and the High Court is
  upheld but the sentence is reduced to the period already
  undergone. [Paras 8 and 10) [581-F-H] [580-F]
       1.3 According to the prosecution, appellant-'ULC',
F used the same knife which accused No.1 had used for
  inflicting injuries on the deceased and which was then
  taken by 'VL' to assault the deceased. While the
  prosecution version is accepted to the extent it suggests
  that 'VL' had taken the knife from 'N', it is wholly unsafe
G to attribute any injury to the deceased by the use of the
  same knife having regard to the nature of the evidence
  on record. The prosecution case against 'ULC' is not free
  from doubt, the benefit whereof must go to the said
  appellant. The conviction and sentence of appellant-'ULC'
H
    VITHAL LAXMAN CHALAWADI & ETC. v. STATE OF              577
        KARNATAKA REP. BY P. PROSECUTOR

is set aside and he is acquitted of the charges framed            A
against him giving him the benefit of doubt. [Paras 9 and
1O] [580-C-E] [581-G]
    CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
Nos. 69-70 of 2008.
                                                                  B
    From the Judgment & Order dated 22.09.2006 in Crl. A..
No. 715, 705 of 2000 and order dated 12.12.2006 in I.A. No.
1 of 2006 in Crl. A. No. 715 of 2000 of the High Court of
Karnataka at Bangalore.
    Rajani K. Prasad (for T.V. Ratnam) for the Appellant.         C
    Sanjay R. Hegde for the Respondent.
    The Judgment of the Court was delivered by
     T.S. THAKUR, J. 1. These appeals under Section 379 of
the Cr.P.C. read with Section 2(a) of the Supreme Court D
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970 arise
out of a judgment and order dated 22nd September 2006 arrd
12th December 2006 -passed by the High Court of Karnataka
whereby State appeal No.715 of 2000 has been partly allowed
and Crl. Appeal No. 705/2000 allowed, the appellants convicted E
under Section 302 IPC and sentenced to undergo
imprisonment for life with a fine of Rs.5,000/- each and in
default of payment of the same to undergo rigorous
imprisonment for six months. The facts giving rise to the filing
of these appeals may be summarized as under:                     F
     Padavva one of the sisters of accused no. 1 to 4 was
engaged to get married to the deceased-Ramesh brother of
PW-1 Guralingappa. Soon after the engagement was over a
loan of Rs.30,000/- was advanced to the accused for purchase
of a commercial vehicle. Since the loan was not repaid by the G
accused, the vehicle was taken over and parked in front of the
house of PW-1 Guralingappa. This led to some bitterness
between the two families which took a turn for the worse when
deceased-Ramesh refused to marry Padavva on the ground
that she was hard of hearing. To add confusion to the situation, H
    578     SUPREME COURT REPORTS                [2010) 12 S.C.R.


A Survana (PW-9) younger sister of Padavva and the accused,
  fell in love with Ramesh and decided to marry him. The things
  came to a head when the deceased took Survana away to
  Bijapur and got his and Survana's marriage registered. This
  enraged the accused no end as they felt that the deceased had
8 spoiled the life of their sister Padavva by refusing matrimony
  even after getting engaged to her.
          2. According to the prosecution on 25th December, 1995
    at about 4.00 p.m. accused nos.1 to 4 went to the house of
    Mahadevappa Basappa Dodamani (accused no.5) and
C   Yellappa Yamanappa Neelanaik (accused no. 6) for a meeting.
    From there they came to the house of the Guralingappa (PW-
    1) around 6.30 p.m. looking for Ramesh-deceased. They were
    let into the house where they questioned the deceased about
    his marriage to Survana (PW-9) without their consent. This led
o   to an altercation between the two parties in the course whereof
    accused Vithal Laxman Chalawadi is alleged to have assaulted
    the deceased with a knife. When Guralingappa (PW-1) and his
    mother, Smt. Putalawwa (PW-6) intervened, they too .were
    assaulted. PW-6 mother of the deceased is alleged to have
E   received a chappal blow from accused No.3 on her face. The
    injured Ramesh was rushed to the hospital but declared dead
    on arrival. A charge-sheet was eventually filed against six
    persons for commission of offences punishable under Sections
    143, 451, 323, 324, 355, 504, 506, 302, 109 and 149 IPC.
F   Principal Sessions Judge, Bijapur, before whom the accused
    were tried, acquitted four of them while convicting the remaining
    two under Section 323 and Section 324 IPC respectively. The
    Court held that the prosecution had failed to prove the charge
    of murder against the accused. According to it all that was
    proved was that a quarrel had taken place at the house of
G   Guralingappa (PW-1) and his brother deceased-Ramesh and
    that accused no.1 Nijappa had caused an injury to the
    deceased using a dangerous weapon constituting an offence
    punishable under Section 324 IPC. Accused no.3 was also
    convicted but only for causing a simple injury with a Chappa!
H   to PW-6 mother of the deceased and convicted under Section
   VITHAL LAX.MAN CHALAWADI & ETC. v. STATE OF   579
KARNATAKA REP. BY P. PROSECUTOR [TS. THAKUR, J.]

323 IPC.                                                            A
      3. Two appeals were filed against this judgment and order
of the Sessions Judge. While Criminal Appeal No.705 of 2000
was filed by the con-Jicts, Criminal Appeal No. 715 of 2000 was
filed by the State against the acquittal of the accused. The High
Court has, as noticed earlier, allowed Criminal Appeal No.705       B
of 2000 while partly allowing Criminal Appeal No.715 of 2000
filed by the State. The High Court has taken the view that the
prosecution had established its case against accused 1 to 4,
namely, Vithal Laxman Chalawadi, Umesh Laxman Chalawadi,
Gangappa Laxman Chalawadi and Nijappa Laxman Chalawadi              C
for the commission of an offence punishable under Section 302
read with Sec. 34 IPC. They were accordingly sentenced to
undergo imprisonment for life for the offence of murder. The
acquittal of the remaining accused persons, Mahadevappa
Basappa Dodamani and Yellappa Yamanappa Neelanaik was               o
affirmed by the High Court. The present appeals assail the
correctness of the said order of conviction and sentence.
     4. Appearing for the appellants Ms. Rajni K: Prasad
argued that the evidence adduced by the prosecution did not
establish the charges framed against the appellants and that        E
the Trial Court was justified in holding so. She contended that
there were material contradictions between the depositions of
the alleged eye-witnesses to the occurrence. She submitted that
while Guralingappa (PW-1) and PW-6 were the brother and the
mother respectively
              .t '
                       of the . .deceased, the other two eye-       F
witnesses, namely, Chandrakant (PW-7) and Lakshman (PW-
8) were not present on the spot at the time of the occurrence
and were wrongly described by the prosecution as eye-
witnesses. She contended that even if the prosecution version
was taken as proved against appellant, Umesh Laxman                 G
Chalawadi, who is alleged to have taken the knife from
appellant, Vithal Laxman Chalawadi to assault the deceased,
appellant, Gangappa Laxman Chalawadi was unarmed and is
not alleged to have inflicted any injury on the deceased or
anyone else except a chappal blow allegedly given to the mother     H
   580      SUPREME COURT REPORTS               [2010] 12 S.C.R.


A of the deceased. Conviction of appellant no.3 for the offence
  of murder was in that view not justified argued the learned
  counsel.
        5. As regard appellant, Umesh Laxman Chalawadi,
  learned counsel urged that there was no evidence to show that
B he was armed with a knife nor was any knife recovered from
  him. The allegation that accused no. 4 had assaulted Ramesh-
  deceased with the very same knife as was used by the other
  two accused was a clear attempt to rope in as ma'ny members
  of the opposite party as possible. Given the strained
C relationship between the parties an attempt to falsely implicate
  persons who had not caused any hurt to the deceased or other
  members of his family could not be ruled out. The case against
  appellant, Umesh Laxman Chalawadi was at any rate doubtful,
  contended the learned counsel.
D       6. Mr. Sanjay H. Hegde, counsel for the respondents on
  the other hand argued that the High Court had correctly
  appreciated the evidence and come to the conclusion that the
  accused-appellant had gone to the spot with the common
  i!ltention of committing the murder of the deceased-Ramesh
E against whom the accused had animosity on account of the
  insult which they perceived had been caused to their sister
  Padawa by refusing to marry her and instead marrying Survana
  (PW-9) without their consent. The depositions of the eye-
  witnesses to the incident had stood the test of cross-
F examination and were rightly believed by the High Court,
  argued Mr. Hegde.
       7. That the relationship between the two families was
  strained on account of the refusal of the deceased to marry
  Padawa and in preference tying the knot with the younger sister
G of the accused without their consent has been sufficiently
  established by the material on record. It was also not disputed
  either before the High Court or even before us that the
  deceased-Ramesh had died a homicidal death having suffered
  as many as 17 injuries which Dr. Goudappa Shankareppa
H Baragi (PW-16) noticed in the course of post-mortem
   VITHAL LAX.MAN CHALAWADI & ETC. v. STATE OF:   581
KARNATAKA REP. BY P. PROSECUTOR [T.S. THAKUR, J.]

examination. Out of the said injuries injury nos. 16 and 17 were A
fatal injuries resulting in shock and hemorrhage and eventual
death of the victim. In support of its case the prosecution had
re.lied upon the depositions of four eye-witnesses to the
inCident. While PW-1 Guralingappa and PW-6 Smt. Putalawwa
are the brother and mother respectively of the deceased who B
were themselves injured in the incident, PW-7 Chandrakanta
and PW-8 Lakshman reached the spot when they heard noise
coming out of the house of the deceased only to find accused
1 to 4 assaulting the deceased with a knife. A careful analysis
of the depositions of the eye-witnesses leaves no manner of        c
doubt in our mind that Nijappa who has since died was the first
to assault the deceased with his knife. We are also satisfied
that the version given by the injured eye-witnesses PW-1
Guralingappa and PW-6 Smt. Putalawwa that appellant, Vithal
Laxman Chalawadi had then taken the knife from Nijappa to
                                                                  0
inflict injuries on the body of the deceased is credible and has
been rightly relied upon by the t"iigh Court. We, therefore, have
no hesitation in holding that Vithal Laxman Chalawadi was
responsible for inflicting injuries attributed to him by the eye-
witnesses that resulted in the death of the deceased-Ramesh.
We accordingly uphold the conviction and sentence imposed E
upon appellant, Vithal Laxman Chalawadi.
     8. As regards the role of appellant, Gangappa the
evidence on record suggests that he gave a chappal blow to
PW-6 the mother of the deceased-Ramesh. There is no other F
overt act attributed to accused-appellant No.3 who appears to
have joined the melee when tempers ran high. The allegation
that he exhorted accused 1 and 2 to kill the deceased has not
in our opinion been satisfactorily prpved to justify his conviction
for murder with the help of Section 34 IPC. The nature of the
evidence on record and the role that appellant, Gangappa is G
alleged to have played, does not, in our opinion, establish that
the appellant no. 3 shared the common intention with Nijappa
and Vithal to commit the murder of deceased-Ramesh. The
conviction of accused-appellant No.3 for the offence of murder
                                                                    H
    582     SUPREME COURT REPORTS                 (2010] 12 S.C.R.


A   punishable under Section 302 IPC read with Section 34 IPC
    is, therefore, not sustainable. The evidence, however, proves
    beyond a reasonable doubt that appellant, Gangappa assaulted
    PW-6 Putalavva with a chappal. His conviction under Section
    323 IPC by the Trial Court and the High Court deserves to be
s   affirmed.
        9. That leaves us with the case of appellant, Umesh
  Laxman Chalawadi about whom the depositions of the
  prosecution witnesses has not made out a clear case to justify
  his conviction for the offence of murder. Appellant, Umesh
C Laxman Chalawadi has, according to the prosecution, used the
  same knife which the accused no.1 had used for inflicting
  injuries on the deceased and which was then taken by Vithal
  Laxman Chalawacli to assault the deceased. While we have
  accepted the prosecution version to the extent it suggests that
D Vithal Laxman Chalawadi had taken the knife from Nijappa, we
  consider it wholly unsafe to attribute any injury to the deceased
  by the use of the same knife.having regard to the nature of the
  evidence on record. Suffice it to say that the prosecution case
  against Umesh Laxman Chalawadi is not free from doubt, the
E benefit whereof must go to said appellant.
       10. In the result, conviction and sentence of appellant, Vithal
  Laxman Chalawadi for the offence under Section 302/34 IPC
  recorded by the High Court is affirmed. Conviction and
  sentence of appellant, Gangappa Laxman Chalawadi is set
F aside and he is acquitted of all the charges framed against him
  except the charge under Section 323 IPC. His conviction under
  Section 323 IPC is maintained but the sentence reduced to the
  period already undergone. The conviction and sentence of
  appellant, Umesh Laxman Chalawadi is set aside and he is
G acquitted of the charges framed against him giving him the
  benefit of doubt. Appellants, Umesh Laxman Chalawadi and
  Gangappa Laxman Chalawadi, if in jail, shall be released
  forthwith if not required in any other case. The appeals are
  accordin,,.gly disposed of.
H N.J.                                        Appeals disposed of.