- (1.) These two appeals are filed under Section 329 Cr.P.C. read with Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act. There are 11 appellants in Criminal Appeal No. 236/ 82 and they figured as original accused Nos. 1, 2, 3, 5, 7, 8, 9, 14, 16, 18 and 19 and original accused Nos. 10, 12 and 20 are the appellants in Criminal Appeal No. 237/ 82. They along with nine others were tried for offences punishable under Ss. 148, 302/ 149 and also under Sections 323, 324 and 326 read with 149, I.P.C. The trial court convicted A-11 Venkappa Bhagavanthappa under Section 302, I.P.C. and sentenced him to undergo imprisonment for life and acquitted the rest. A- 11 preferred an appeal against his conviction and the State of Karnataka also filed an appeal against the acquittal of the 19 other accused. The High Court dismissed the appeal filed by A- 11 and he has not preferred any appeal in this Court. In respect of acquittal of other accused, the High Court, however, set aside the acquittal of the appellants and convicted them for the offences for which they were charged and sentenced them to undergo imprisonment for life and also various terms of imprisonment for the lesser offences. The sentences were directed to run concurrently. The acquittal of the remaining accused were confirmed by the High Court. Hence the present two appeals.
(2.) The prosecution case is as follows: Chilmur is a small Village predominantly inhabited by shepherds. A-1 to A-20 being the residents of the said Village belong to shepherds community and are related among themselves. A- 1, A- 18 and A- 19 are brothers. A-17 is their elder sister and she was married to one Bhimangouda Patil and she was deserted. She came back to her parents' house and was residing with her brothers. P.Ws. 3, 6, 7, 8, 11 and 12 are brothers. P.W. 2 is their sister. She was married to one Fakirappa. The deceased Yallappa was the cousin brother of P.W. 6 and also the brother of A-2 and A-6. He got separated from them and was living separately. Another deceased Pandappa was only a child of one year and was the younger son of P.W. 3. Though the accused and these P.Ws are related, they were not on cordial terms. There used to be quarrels. On 23-6-79 there was such a quarrel. A-2, A-3, A-5 and A-11 allegedly assaulted P.W. 16 and a complaint was given and some of the P.Ws figured as witnesses in that case. There was another complaint against A-2 and others and the allegation was that they committed trespass and hurt. In that P.Ws 3, 8 and the deceased Yallappa figured as eye-witnesses. A-5 filed a complaint against P.Ws 8, 18 and some others. In that A-2 and A-9 figured as witnesses. The said complaint was referred to the police for investigation. On 14-7-79, P. W. 16 accompanied by P.Ws 3 and 8 went to the police station which is about six miles away and after sunset on that day P.W. 2 was preparing jawar breads and her daughter Vallavva was asked by her to get up and see as there was "danger of wolves". A-17 heard this and thought that P.W. 2 is indirectly calling her a wolf and there was a quarrel and there was exchange of abuses. A-17 dragged out P.W. 2 and pulled her saree. This was reported to P.W. 8 and others. Thereafter it is the prosecution case that A-1 to A-20 armed with sickles and sticks etc. went towards the temple shouting. Seeing them so coming, P.W. 8 followed by P.W. 4 went forward and, asked them not to make galata. The accused started beating everyone who came in front of them. While A-2 and A-5 beat P.W. 8 with sticks. A-11 cut on P.W.4 with an axe on the left side of the neck but it missed and the blow landed on the child Pandappa whom she was carrying and who was asleep resting his head on her shoulder. As the blow fell on the centre of the head of the child, he died immediately. Hearing the galata, P.W. 5 came out of the house and received injuries at the hands of A-13. A-18 and A-19 cut on P.W. 9 with axe and sickle. P.W. 9 received severe injuries. In the meanwhile A-1 and A-3 assaulted the deceased Yallappa with sticks. A-10 cut him with axe on his hand and the deceased fell down. A-8 also cut P.W. 6 with a sickle. A-12 beat with a stick on the back of P.W. 7. A- 13 hurled a stone at him. A-20 also assaulted P.W. 11 on his back with a stick. A14 and A-20 also assaulted P.W. 11. Soon after the deceased Yallapa fell down, all the accused left the place. The deceased Yallappa and P.W. 9 who had sustained severe injuries were lying at the place of incident and they were taken to the katta. P.W. 16 went to the place of incident and he wanted to remove the injured immediately and tried to arrange a taxi to take them to the hospital. P.W. 19 who was contacted by P.W. 6 rang up to the Police Station at Ramdurg. P.W. 27, the Police Sub-Inspector, went in a taxi to Chilmur reaching there at about 11 p.m. and he arranged to send the injured, Yallappa and P.W. 9. They were taken to a hospital at Hubli. The Police Sub-Inspector recorded the complaint Ex.P.7 from P.W. 8 and sent the same for registration of the crime. The other injured persons were also sent for medical examination. P.W. 28, Circle Inspector took over the investigation. Inquest was held on the dead body of the child. Meanwhile Yallappa was examined by the Doctor, P.W. 10, who admitted him. He noticed two lacerated wounds on him. Yallappa died two days later and the post-mortem was conducted by another Doctor, P.W. 13 who found two stitched wounds and some abrasions and on dissection, he found two internal injuries; (i) The entire scalp layer was contused and (ii) Depressed comminuted fracture with radiating fissured fractures over the right parietal bone and right occipital, right temporal, left parietal and left side of the frontal bones. He found that brain showed large extradural blood clot. He also found that 2nd, 3rd, 5th and 6th ribs on the right side were fractured. He opined that injuries Nos. 1 and 2 were caused as a result of two different blows and the third injury was due to a fall on rough surface. The accused were arrested and after completion of the investigation, the charge-sheet was laid. The accused pleaded not guilty.
(3.) The learned Sessions Judge concluded that the child Pandappa and Yallappa, the two deceased met with homicidal death. He also held that P.Ws. 3, 4, 6, 7, 8, 9 and 11 sustained injuries. He, however, doubted the ability of the witnesses to identify the accused as the occurrence took place during darkness and that since the witnesses were interested, their evidence did not inspire confidence and accordingly acquitted the accused except A-11. He, however, held A-11 guilty for causing the death of the child. The High Court, while reversing the order of the acquittal, held that the learned Sessions Judge grossly erred in rejecting the evidence of the injured eye-witnesses merely on the ground that they are interested and that they could not have identified the accused.;