- (1.) Both these appeals have been filed against the impugned judgment and order dated 31st March, 2004 passed by the High Court of Karnataka at Bangalore, dismissing the Criminal Appeal No. 839 of 2001 and allowing Criminal Appeal No. 1132 of 2001, filed by the State. The High Court has dismissed the appeal of appellant Bhimanna, against the order of conviction under Section 302 by the trial court, but allowed the appeal of the State against the appellants in Criminal Appeal No. 171 of 2005 herein, reversing the judgment of the trial court, acquitting them of the charge under Section 302 of the Indian Penal Code, 1860 (hereinafter called 'IPC') and awarding them life imprisonment.
(2.) Facts and circumstances giving rise to these appeals are as follows: A. As per the case of the prosecution, Yenkappa (A-1), appellant in Criminal Appeal No. 171 of 2005 is the father of Bhimanna (A-2), who is the appellant in Criminal Appeal No. 46 of 2005, and Suganna (A- 3), is the nephew of Yenkappa (A-1). Deceased Bheemanna was the nephew of Yenkappa(A-1). Yenkappa(A-1) owns land adjacent to the land of the deceased Bheemanna in revenue estate of village Buddinni, Police Station Ramdurga, in the district of Raichur. There was a dispute between Yenkappa and the deceased over the land of the deceased as, deceased refused to give him right of passage through his land. Thus, a Panchayat was convened in the village, wherein it was decided that neither of the parties will enter the others' land, to use the same as a pathway. B. On 17.11.1999 at about 4.00 p. m. , Yenkappa(A-1), alongwith Bhimanna (A-2) and Suganna (A-3), was returning home with agricultural implements i. e. axes and a plough. They attempted to use the land of the deceased as a pathway. The deceased Bheemanna, who was present on his land alongwith his wife Paddamma (PW. 1) and mother, namely, Bheemava, obstructed the accused persons asking them not to pass through his land. Yenkappa(A-1) then started hurling abuses in filthy language and instigated Bhimanna (A-2) and Suganna (A-3) to assault the deceased. Thus, Bhimanna (A-2) and Suganna (A-3) began assaulting the deceased with axes over his head and right hand. Yenkappa (A-1) assaulted the deceased with "Meli" (Wooden part of a plough). Paddamma (PW. 1) and Bheemava, mother of the deceased went to save the deceased, but they too, were threatened with assault. Similar threats were hurled when Rangayya (PW. 6), nephew of the deceased and his father Hanumappa approached the place of occurrence. The accused persons left the place after assaulting the deceased, throwing away the axes and wooden part of the plough. Rangayya (PW. 6) brought a bullock cart as asked by Paddamma (PW. 1) from the village and the deceased was then taken to Ramdurga Police Station. Upon the advice of the police, the deceased was taken in a mini lorry, driven by Mahadevappa (PW. 10) to Deodurga Hospital and when they reached there at 8.00 p. m. , the doctor declared Bheemanna dead. On the basis of the complaint submitted by Paddamma (PW. 1), an FIR was lodged at 8.15 p. m. under Sections 143, 147, 148, 302, 323 and 504 read with Section 149 IPC. Investigation was initiated by Rajashekhar (PW. 14), Circle Inspector. C. The inquest was conducted over the dead body of the deceased Bheemanna in the presence of Panchas, including Basawarajaiah (PW. 2). The post-mortem was conducted by Dr. Patil Prabhakar (PW. 12). The investigating officer recovered the axes and the wooden part of the plough used in the crime and sent the same for FSL examination and, subsequently, the three appellants were also arrested. After completion of the investigation, charge-sheet was filed against the appellants for the offences punishable under Sections 447, 504, 302 read with Section 34 IPC. D. Upon conclusion of the trial in Sessions Case No. 40 of 2000, the learned Sessions Judge vide judgment and order dated 19.6.2001, convicted Bhimanna (A-2) for the offences punishable under Sections 447, 504, 302 read with Section 34 IPC and awarded him life imprisonment with a fine of Rs. 2,000/-. So far as Yenkappa (A-1) and Suganna (A-3) are concerned, they were only convicted under Sections 447, 504 read with Section 34 IPC. E. Being aggrieved, Bhimanna (A-2) preferred Criminal Appeal No. 839 of 2001 and the State of Karnataka filed Criminal Appeal No. 1132 of 2001 against the accused Yenkappa (A-1) and Suganna (A-3). The High Court has dismissed the appeal of Bhimanna (A-2) and allowed the appeal of the State convicting Yenkappa (A-1) and Suganna (A-3) also under Section 302 IPC. Hence, these appeals.
(3.) Shri Basava Prabhu S. Patil, learned senior counsel appearing for the appellants, has submitted that Bhimanna (A-2) was wrongly convicted by the courts below under Section 302 read with Section 34 IPC, as the prosecution failed to explain adequately the genesis of the case. The deceased Bheemanna had no land in close proximity to the land of A-2. Therefore, the question of any dispute could not arise. The same was proved by way of cogent evidence and the courts below failed to appreciate the same in the correct perspective. The presence of witnesses, particularly Paddamma (PW. 1) and Rangayya (PW. 6), is doubtful, for the reason that Paddamma (PW. 1) had given birth to a girl child only one month before the date of such incident, and it was thus highly unlikely, that in such a physical condition, she would be able to do any agricultural work. Bheemava, mother of the deceased, was in fact present at the place of occurrence, and has not been examined by the prosecution. Thus, the prosecution is guilty of withholding a material witness. Rangayya (PW. 6) could not have been present there for the reason that he did not have land in close proximity to the place of occurrence. More so, it was not a pre- determined assault and the incident clearly occurred in the spur of the moment. The weapons used in the crime were basically agricultural implements with which the appellants had been working in their fields. The High Court reversed the judgment of the trial court so far as the acquittal of Yenkappa (A-1) and Suganna (A-3) is concerned, without applying the parameters laid down in this regard, by this Court. The High court erred in convicting A-1 and A-3 for the offences punishable under Section 302 IPC, as there is no evidence available to show, that all the accused acted in furtherance of common intention. Thus, conviction of either of the appellants under Section 302 IPC is not justified and the appeals deserve to be allowed. ;