Holding

A1‑A6 are guilty of murder under Section 302 read with Section 149 IPC, while A7 and A8 are acquitted due to lack of evidentiary linkage.

Summary

The case arose from a land dispute that led to a group assault on Mahadevappa, resulting in his death. The trial court convicted Yankappa (A1) under Section 302 read with Section 149 IPC and A2‑A6 under Section 304 Part I read with Section 149, acquitting A7‑A15. The Karnataka High Court upheld A1's conviction, altered A2‑A6's conviction to Section 302 with Section 149, and maintained the acquittals of the remaining accused. On appeal, the Supreme Court examined whether the evidence established a common intention among the accused and whether the trial court erred in the convictions. It held that the eye‑witness testimony sufficiently proved that A1‑A6 jointly assaulted the deceased, justifying murder convictions under Section 302 read with Section 149, but found no evidence linking A7 and A8 to the assault, thereby upholding their acquittal. The appeal was partly allowed, confirming convictions of A1‑A6 and setting aside any conviction of A7 and A8.

Issues considered

Whether the accused A1‑A6 can be convicted of murder under Section 302 read with Section 149 IPC for a joint assault.
Whether the trial court erred in convicting A2‑A6 under Section 304 Part I instead of Section 302.
Whether there is sufficient evidence to convict A7 and A8 (AB) under Section 302 read with Section 149 IPC.

Legislation cited

Indian Penal Code, 1860s. 143, s. 147, s. 148, s. 149, s. 302, s. 304(Part I)

Subjects

murderjoint liabilitySection 149 IPCcollective assaultconvictionacquittaleye‑witness testimonycriminal appeal

Judgment

[2008] 17 S.C.R. 623

YANKAPPA AND ORS. A
II.

• STATE OF KARNATAKA
(Criminal Appeal No. 68 of 2002)

DECEMBER 16, 2008

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
"" B

SHARMA, JJ.]

Penal Code, 1B60- ss.302 r/w s.149 and s.304 (Part I)
rlw s. 149 - Conviction under - Land dispute between parties c
- Armed accused assaulting the deceased in broad ,day light
- Serious injuries inflicted resulting in his death - Conviction
of A 1 uls.302 rlw s.149 - A2 to A6 convicted uls.304 (Part I)
rlw s. 149 - Acquittal of others - High Court upholding
conviction of A 1 and also convicted A2 - AB uls. 302 rlw s. 149
D
- Acquittal of other accused upheld - On appeal, held:
Evidence of prosecution witnesses relate only to A 1 - A6 and
~ do not ascribe any role to A 7 - AB - Thus, conviction of A 1 -
A6 upheld and that of A7 - AB set aside.
According to the prosecution case, on account of
land dispute between accused no. 1 and M, several E
accused persons jointly attacked M with various
weapons resulting in his death. PW 3-complainant, PW
1-wife of M, PW 2, PW 6 and brothers of M intervened to
save M. FIR was lodged. Investigation was carried out.
Prosecution witnesses PW 1 to PW 21 were examined. F
t. -t PWs 1 to 4 and 6 claimed to be eye witnesses~ PW 5 was
also examined as eye witness but he did not support the
prosecution case in its entirety. Accused no. 1 to 14 were
charged uls. 143, 147, 148 and 302 rlw s. 149 IPC. Trial
court convicted accused no.1 u/s. 302 r/w s. 149 IPC and G
sentenced him to life imprisonment. Accused no. 2 to 6
were convicted uls. 304 (Part I) rlw s. 149 IPC and
't sentenced to three years rigorous imprisonment.
Accused no. 7 to 15 were acquitted. Accused no. 1 filed
623 H
624 SUPREME COURT REPORTS [2008] 17 S.C.R.

A appeal. Respondent-State also filed appeal against
acquittal of accused no. 2 to 6 u/s 302 r/w s. 149 IPC and
also against acquittal of accused no. 7 to 15. High Court
upheld the conviction of accused no. 1 and also
convicted A2 to AS u/s. 302 r/w s. 149 IPC and imposed
B life imphlonment. However, it upheld the acquittal, of
other accused. Hence the present appeal.
Partly allowing the appeal, the Court
HELD: The reasoning indicated by the High Court
suffers from no infirmity so far A 1 to A6 are concerned. It
C concluded that there is consistent evidence of all the eye-
witnesses, whose presence at the spot cannot be
doubted, that they conjointly assaulted the deceased and
caused his death. It is no doubt true that a reading of the
evidence of PW-2 alongwith the evidence of PW-4 would
0 create some doubt about the presence of PW-2 at the
time of the actual occurrence. But there is absolutely ·no
reason to doubt the presence of PWs. 1, 3, 4 and 6 at the
spot when the incident in question had occurred. ,The
evidence against the Accused Nos. 1 to 6 is
E over:whelming. It consists.of several eye-witnesses who
saw the assault in the broad day light and whc;> knew all
these ~ccused persons. There is no doubt that all these
accused persons A1 to A6 joined in the assault
committed on the deceased when he was near the
gaddige with the various. weapons and_ they inflicted
F such· serious injuries to th~· deceased that he had died
on the spot. They must have known that at.the least, they
were causing injuries, which were likely to cause death
and if death has resulted, they were guilty of murder. The
trial court had committed grave error in holding that
G Section 302 was not applicable to them. Therefore, the
High Court rightly convicted each A 1 to A6 in terms of
Section 302 read with Section 149 IPC. So far as
appellants A7 and AS are concerned, the reasoning
indicated by the trial court for acquitting them does not
H suffer from any infirmity. Evidence of PW-1 and PW-3
~

YANKAPPAAND ORS. v. STATE OF KARNATAKA 625
\,

relate to only A1 to AG. They have not ascribed any role A
to A7 and AB. That being so, while upholding the
judgment of the High Court to that extent the appeal is
allowed so far as it relates to A7 and AB-appellants. [Para
5, Band 9] [62B-F-H; 629-A-B, G-H; 630-A-B]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal B
No. 68 of 2002.
From the Judgment and Order dated 16.1.2001 of the High
~
Court of Karnataka at Bangalore in Crl. Appeal No. 553 of
1997.
M. Gireesh Kulkarni, S.K. Kulkarni and Khwairakpam c
_. Nobin Singh for the Appellants.
Anil Kr. Mishra, A Rohen Singh, Amit Kr. Chawla, Vikrant
Yadav and Sanjay R. Hegde for the Respondent.
The Judgment of the Court was delivered by
0
DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
-.i to the judgment of the Division Bench of the Karnataka High
Court disposing of two criminal appeals i.e. one by accused
Yankappa (hereinafter described as 'A 1') who was convicted
for offence punishable under Section 302 read with Section 149
E
of the Indian Penal Code, 1860 (in short the 'IPC') and the other
filed by the State questioning conviction by the trial Court for
offence punishable under Section 304 Part I IPC read with
Section 149 IPC in respect of A1 to A6. Sentence of 3 years
is imposed. According to State, they should have been
convicted also under Section 302 read with Section 149 IPC. F
~
Appellants 7 to 15 were acquitted by the trial Court which was
challenged in the State's appeal.
2. By the impugned judgment the High Court dismissed
the appeal filed by Yan kappa (A 1) but allowed the State's
appeal to the extent that A2 to AB were convicted for offence G
under Section 302 read with Section 149 IPC. They were
sentenced to undergo imprisonment for life. The acquittal in
...
-? respect of rest as was recorded by the trial Court was upheld
by the High Court.
H

);
)r::
'

626 SUPREME COURT REPORTS [2008] 17 S.C.R.
e I
.J~

A 3. Factual scenario giving rise to the trial of the accused
persons is as follows:
The accused No.1 Yamanappa and 14 others were tried
before the Trial Court on charges under Sections 143, 147, 148 I '
& 302 read with Section 149 IPC. The Trial Court convicted the
B accused No.1 Yamanappa under Section 302 read with 149
IPC and the accused Nos. 2 to 6 under Section 304 Part I read
with 149 IPC. The rest of the accused persons viz. the accused
7 to 15 were acquitted of all the charges framed against them. -t
The accused No.1 was sentenced to undergo life imprisonment
c and to pay a fine of Rs.10,000/- u/s 302 IPC and the accused
Nos. 2 to 6 were sentenced to undergo RI for three years and
fine of Rs.10,000/- under Section 304 Part-I read with Section .._
149 IPC. The accused No.1 filed an appeal against his
conviction and sentence in Crl. Appeal No.315/97. The State
also preferred an appeal in Crl. Appeal No.553/97 against an
D order of acquittal of the accused under Section 302 read with
Section 149 IPC. The accused Nos.2 to 6 did not prefer any
appeal against their conviction and sentence. The deceased ~
,____
is one Mahadevappa aged about 30 years. He was killed on
the Musky-Mudgal Road on 28.10.95 at about 8.30 am in the L
E morning. Smt Mallamma (PW-1) is the wife of the deceased.
The deceased Mahadevappa along with his wife Mallamma .....
PW-1 and mother CW-5 had been residing in the house
situated in his land; on the outskirts of Bailagudda village.
Pampanna (PW-2) and Erappa (PW-3) are the brothers of the
F deceased and they were both residing in the village habitation
of Bailagudda. The land of the deceased Mahadevappa was t
adjoining the land of the accused No.1 Yamanappa. That is to
say, they were possessing contiguous lands. Deceased
Mahadevappa had seriously objected to the accused No.1
Yamanappa digging a borewell near his own borewell and
G thereafter, the differences arose between the family of the
accused No.1 Yamanappa and the family of the deceased.
"
Since then, there used to .be some kind of friction between the
?
members of their two families. While this was so, on the
evening of 27.10.95, the catties belonging to the accused No.1
....
H Yamanappa entered into the land of the deceased

~
STATE OF ORISSA v. SUKRU GOUDA 627
[OR. ARIJIT PASAYAT, J.]
Mahadevappa for the purpose of grazing and _in that regard, A
there was a verbal quarrel between the wife of the deceased
1 (PW1) and the wife of the accused No.1 namely Sharanamma.
This incident was reported by PW-1 to the deceased on his
return to the house. Thereafter, on the following morning, at
about 8.30 am, after giving the grains (Bajra) to one Muniyappa 8
(PW-4) who I
had come to the house of the deceased to collect
the grains, the deceased Mahadevappa was proceeding along
with PW-4 from his house in order to go to Musky, with the
t-- intention to lodge a complaint with the police in respect of the
incident, which occurred on the previous day evening. When the
deceased Mahadevappa was so proceeding along the road C
near a school, all the accused persons came in a group, armed
with various weapons like clubs, axes and spears and after
picking up a quarrel with the deceased, they committed assault
on, him. Accused No.1 Yamanappa stabbed the deceased with
a spear. The accused No.6 dealt axe blows on the deceased. D
The others viz. accused No.4 Kidiappa, accused No.7 Ayappa
~ and accused No.8 Hanumantha assaulted the deceased with
clubs. Thereafter, the women accused No. 13 Sharanamma,
accused No. 11 Garudamma, accused No.10 Hanumavva,
accused No.12 Fakiravva and accused N0.14 Shivamma E
dropped stones on the deceased and so also one Kumarappa
brother of Sharanamma and son-in-law of Durgappa. As a
result of the assault committed by these accused, the deceased
had sustained bleeding ·injuries on his head and legs. The
complainant Erappa (PW-3) and Pampanna (PW-2), the
brothers of the deceased, Mallamma (PW-1), the wife of the F
~ deceased and one Shekara Gowda (PW-6) had intervened to
rescue the deceased. But they were not successful in
pre\Jenting the accused from committing the assault on the
deceased. Thereafter, before the deceased Mahadevappa
could be shifted to the hospital for treatment, he died on the G
spot. The PSI PW-17 who was on village rounds came to the
spot at about 11 am and recorded the statement of Erappa
~ (PW-3) which is as per Ex.P.1 and treated the same as the FIR.
On the basis of such Fl R Ex. P.1, the investigation was taken
up and on completion of the investigation, the charge sheet was H

•
628 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
,..,,

A laid against the 15 accused persons. At the trial, the
prosecution had examined PWs 1 to 21. Of them, PWs 1 to 4
& 6 claimed to be eye witnesses to the occurrence. PW-5 was
also examined as an eye witness, but he did not support the
prosecution case in its entirety. PWs 7 & 8 had come to the
B spot immediately after the assault and they were informed of
the occurrence by PW-1. PW-9 is a witness for the inquest
proceedings held on the dead body of the deceased and the
spot panchanama con-ducted over the place of incident as per ~
Exs P.6 & P.7.
c 4. After completion of investigation, charge sheet was
filed. As the accused persons pleaded innocence, trial was
...
held. The trial Court, as noted above, held A 1 to A6 guilty of .\
different offences as noted above. A? to A 15 were acquitted. '<
The High Court found that the conviction of A 1 was in order.
The conviction of A2 to A6 was made under Section 302 read
D with Section 149 IPC. Similar was the case in respect of A?
and A8 who were acquitted by the trial Court.
5. The High Court gave the following reasons for its
conclusions:
E "Therefore in our view the acquittal of the Accused Nos.9
to 15 is concerned warrants no interference in the appeal
filed by the State. In so far as the other accused viz.,
Accused Nos.1 to 8 are concerned, there is consistent
~vidence of all the eye~witnesses, -whose presence. at the

" .s~pf cannot be doubted, that they conjointly assaulted the
F deceased and caused his death. It is no doubt true that a ..,.
reading of the evidence of PW-2 alongwith the evidence "
of PW-4 would create some doubt about the presence of
PW-2 at the time of the actual occurrence. But there is
absolutely no reason to doubt the presence of PWs.1, 3,
G 4 and 6 at the spot when the incident in question had
occurred. The evidence against the Accused Nos.I to 8 is
overwhelming. It consists of several eye-witnesses who .
saw the assault in the broad day light and who knew all t
these accused persons. There is no doubt that all these
accused persons A 1 to AS joined in the assault committed
--
H

.-
STATE OF ORISSA v. SUKRU GOUDA 629
[DR. ARIJIT PASAYAT, J.]

on the deceased when he was near the gaddige with the A
various weapons and they inflicted such serious injuries to
~
the deceased that he had died on the spot. They n:iust
have known that at the least, they were causing injuries,
which were likely to cause death and if death has resulted,
they were guilty of murder. In such cases, it is immaterial 8
by whose weapon the fatal injury is inflicted. In our opinion
all these 8 accused persons Al to A8 ought to have been
convicted for murder and if they have been so convicted
t-
of murder, we would not have interfered. It has to be stated
that when several persons jointly attack the deceased with

- various weapons resulting in the death of the deceased, c
they are all equally guilty even though it may not be
possible to prove which of them actually inflicted the fatal
blow. In the instant case, the learned trial Judge was not
justified in not convicting the Accused Nos. I to 8 under
Section 302 IPC either with the aid of Section 149 of with D
Section 34 IPC. To that extent, the order of the trial Court
..... needs to be modified. We are aware that we are interfering
with the order of acquittal under Section 302 IPC, but we
think interference in this case is imperative and hesitation
to interference will lead to a miscarriage of justice." E
6. In support of the appeal learned counsel for the
appellants submitted that the trial Court should not have found
any of the accused persons guilty. The evidence of PWs. 1, 3,
4 and 6 should not have been relied upon particularly when PWS
did not support the prosecution and PW2 was disbelieved by F
-t- the trial Court. It is also submitted that there is no reason to
convict A? and A8 who were acquitted by the trial Court.
7. Learned counsel for the respondent supported the
judgment of the High Court.
8. We find that the reasoning indicated by the High Court G
as quoted above suffers from no infirmity so far A1 to A6 are
concerned. The trial Court had committed grave error in holding
that Section 302 was not applicable to them. Therefore, the
.....,,
High Court has rightly convicted each A1 to A6 in terms of
Section 302 read with Section 149 IPC. So far as appellants H

-!It
630 SUPREME COURT REPORTS
e
[2008) 17 S.C.R.

A A7 and AB are concerned, the reasoning indicated by the trial
Court for acquitting them does not suffer from any infirmity. ~ ;
Evidence of PW-1 and PW-3 relate to only A 1 to A6. They have
not ascribed any role to A 7 and AB.
9. That being so, while upholding the judgment of theHigh
B Court we allow the appeal so far as it relates to A7 and AB i.e.
the appellants. A 1 i.e. Yankappa has not questioned
correctness of the judgment. The appellants Ayyapa and
Hanumantha are acquitted. They were released on bail --+
. pursuant to the order dated 1B.2.2002. The bail bonds shall
c stand discharged.
10. The appeal is allowed to the aforesaid extent.
N.J. Appeal partly allowed.

/

'.,,