Supreme Court of India

B.K. CHANNAPPAversusSTATE OF KARNATAKA

Citation: 2006 INSC 822
Decided: 10 November 2006
Disposal: Disposed off
Bench: A K MATHUR

Holding

Where the injuries are not on vital parts and intention to cause death is not proved, a conviction under Section 302 IPC read with Section 149 cannot stand and must be altered to Section 304 Part‑II read with Section 149, and where no participation is proved, the conviction under Section 302 must be set aside.

Summary

The case arose from a politically motivated attack in 1995 in which Basavarajaiah was killed and four others were injured. Twenty‑three persons were tried; the trial court convicted several under Section 302 IPC read with Section 149, while others were acquitted. The High Court affirmed the murder convictions of A‑1 and A‑15 and altered some convictions, prompting appeals. The Supreme Court held that the medical evidence showed none of the injuries were on vital parts and the prosecution failed to prove an intention to cause death, so the murder convictions of A‑2, A‑3, A‑17, A‑19 and A‑20 could not be sustained and were altered to culpable homicide not amounting to murder under Section 304 Part‑II read with Section 149, with eight‑year sentences and fines. It also held that no evidence linked A‑15 to the offence, setting aside his conviction and ordering his release. Convictions under Sections 324 and 326 for A‑17, A‑20 and A‑19 were upheld, and the appeal of the deceased A‑1 was abated due to his death.

Issues considered

The prosecution proved the fact of death but not the intention to cause death required for murder under Section 302 IPC read with Section 149.
Whether the conviction for murder can be altered to culpable homicide not amounting to murder under Section 304 Part‑II when injuries are not on vital parts.
Whether the conviction of A‑15 under Section 302 IPC is sustainable in the absence of any eyewitness or material evidence of his participation or common intention.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 313
Indian Penal Code, 1860s. 149, s. 302, s. 304 Part II, s. 324, s. 326

Subjects

murderculpable homicide not amounting to murderunlawful assemblycommon intentionSection 149 IPCmedical evidenceconviction alterationpolitical rivalry

Judgment

A B.K. CHANNAPPA
v.
STATE OF KARNA TAKA

NOVEMBER I0, 2006

B [A.K. MATHURANDLOKESHWARSINGH PANTA, JJ.]

Penal Code, 1860 :

Sections 304 Part JI rlw 149 and 302 rlw 149-Murder-Caused by
C unlawful assembly, by inflicting injuries with deadly weapons-Eighteen
injuries found on the body of deceased-But none on the vital parts-Hence,
it cannot be said that the injuries were inflicted with intention to cause
death-Conviction of accused under S.302 r.w. S.149 therefore altered to
that under S.304 Part-JI rlw S.149.
D Section 302-Murder-Caused by unlawful assembly, by inflicting
injuries with deadly weapons-23 accused-Acquittal ofA-15 by Trial Court-
Conviction by High Court under S.302-Justification of-Held, notjustified-
Though name ofA-15 finds mention in the FIR but injured witness or eyewitness
had not mentioned his name in their statements recorded by Police under
E S.161, CrPC or in the testimony that he participated in inflicting injuries on
body of the deceased-A/so no weapon of offence recovered from A-15 or at
his instance-Conviction of A-15 as recorded by High Court cannot be
sustained as it is based on the inference drawn regarding his participation
and existence of common. intention on the basis of conjectures and surmises.

F Twenty three persons were tried for the offence of killing one person
and injuring four others. The accused persons had allegedly assaulted the
deceased with various deadly weapons like choppers, axes, sickle, clubs and
stones which led to his death.

The Trial Court held that A-2, A-3, A-10, A-11, A-13, A-14, A-17 to A-
G 22 had formed an unlawful assembly to cause the death of deceased in
prosecution of which they murdered him and caused grievous injuries to
PWsl to 4. Accordingly it convicted them under Section 302 IPC read with
Section 149 IPC and sentenced them to life imprisonment. A-17, A-18 and A-
20 were also held guilty under Section 324, IPC while A-19 was additionally
lI 810
B.K. CHANNAPPA 1·. STATE OF KARNA TAKA 81,]

convicted under Section 326 IPC. A-1, A-4 to A-9, A-12, A-15, A-16 and A
A-23 were given benefit of doubt and hence acquitted. High Court however
set aside the acquittal of A-1 and A-15 and convicted them under Section 302
IPC and sentenced them to.undergo life imprisonment. It further affirmed
the conviction of A-2, A-3, A-17, A-19 and A-20. The conviction of A-10,
A-11, A-13, A-14, A-18, A-21 and A-22 was set aside by the High Court.
B
Out of the present three appeals, two have been filed by A-1 and A-15
while the third appeal has been jointly filed by A-2, A-3, A-17, A-19 and
A-20. A-1 died during pendency of appeal before this Court, hence his appeal
stands abated.

Disposing of the other two appeals, the Court
c
'HELD:l.1. The injured witnesses PW-2, PW-3 and PW-4 have fully
established the case of the prosecution against A-2, A-3, A-17, A-19 and
A-20, although there were certain discrepancies in their testimony and in
comparison to the versions of PW-6, PW-7 and PW-19, the eyewitnesses, in
regard to the weapons of offence individually used by A-1, A-3, A-17, A-19 D
and A-20 for inflicting injuries on the person of each of injured witness as
also on the person of the deceased. The discrepancies pointed out are however
minor and insignificant. The witnesses were examined in the Court after a
gap of almost five years after the occurrence. The evidence on record further
shows that the injured witnesses had been subjected to searching length~ E
cross-examination and in such type of cross-examination, some improvements,
contradictions, and omissions are bound to occur in their evidence, which
cannot be treated very serious, vital and significant so as to disbelieve and
discard the substratum of the prosecution case. There is no merit in the
I

argument of the appellants that the evidence of the injured witnesses and other
eyewitnesses should be labelled as the evidence of the interested witnesses. F
On the other hand, the evidence of all the eyewitnesses including injured
persons is quite natural, convincing and trust-worthy. There is no materi~I
on record from which an inference can be drawn that the material witnesses
have implicated the appellants A-2, A-3, A-17, A-19 andA-20 in a false case.
1818-B-GI G
1.2. The judgment of the High Court holding A-2, A-3, A-17, A-19 an;d
. A-20 guilty of assaulting the injured witnesses and causing fatal injuries to
the deceased cannot be found faulty on any ground. The evidence of the injured
witnesses and eyewitnesses finds corroboration from the medical evidence.
On close scrutiny of the evidence of PW-32, the medical expert who conducted H
812 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A the post mortem, it is clear that none of the injuries inOicted on the person
of the deceased was found on any of the vital part of his body. On perusal of
the medical report prepared by PW-32, large crush injury or lacerated
injuries were found either on the chin, right leg, left knee, left wrist, right
shoulder, right forearm, etc. on the body of the deceased, except two lacerated
injuries above right lateral mallalous and on right medial mallalous. It is true
B that as many as 18 injuries found on the dead-body of the deceased, were noticed
but the prosecution has not established on record that the said injuries were
inflicted with the intention to cause the death of the deceased. Considering
the nature of the injuries having been found not on the vital part of the body,
the conviction of A-2, A-3, A-17, A-19 and A-20 as recorded by the trial court
C and affirmed by the High Court under Section 302 IPC cannot be sustained.
The conviction of A-2, A-3, A-17, A-19 and A-20 is altered from Section 302
IPC read with Section 149 to Section 304 Part-II read with Section 149 IPC.
However, taking into consideration the time lag of more than eleven years
from the date of the incident till the date of disposal of these appeals by this
Court during which period the said accused have suffered physically, mentally
D and financially, sentence of eight years on each of the said accused and a fine
of Rs.2,000/- each is imposed which would meet the ends of justice in the
present case. (818-H; 819-A-El
1.3. The conviction of A-17 and A-20 under Section 324 IPC shall remain
intact The conviction of A-19 under Section 326 IPC imposed on him by the
E trial court and affirmed by the High Court do not call for any interference in
this appeal (819-F-G]

2. Though the name of A-15 finds mention in the FIR but no injured
witness or eyewitness has mentioned his name in the statement recorded by
the Police under Section 161, CrPC connecting him with the commission of
F the offence. The High Court has not given any specific finding that A-15 was
a member of the unlawful assembly along with the other accused persons.
PW-7, a servant of the deceased, who was produced as an eyewitness of the
incident, has categorically stated that when he along with other injured
witnesses and eyewitnesses reached the spot, A-15 had kept the right leg of
G the deceased on his left leg. No eyewitness or injured witness has named
A-IS in their testimony~that A-15 had participated in inflicting injuries on
the body of the deceased. The Trial Court has recorded a specific finding that
the prosecution has not proved on record beyond reasonable doubts that A-15
along with A-1 (since deceased), A-4 to A-9, A-12, A-16 and A-23 had inflicted
any blow on the body of the deceased, with the weapons stated to have been
H
B.K. CHANNAPPA v. STATE OF KARNATAKA[LOKESHWARSJNGHPANTA,J.] 813

held by them neither any weapon of offence was recovered from A-15 or at A
his instance. The evidence proved does not permit any inference to be drawn
regarding participation of A-15 in the commission of the offence. Therefore,
the conviction of A-15 recorded by the High Court cannot be sustained as it
is based on the inference drawn regarding his participation and existence of
common intention on the basis of conjectures and surmises. The judgment of B
the High Court, therefore, convicting A-15 under Section 302, IPC, and
sentencing him for life imprisonment is set aside. [820-B-F)

CRIMINAL APPELLATE JURISIDICTION : Criminal Appeal No. 404 of
2004.

From the Judgment and Order dated 10.9.2005 of the High Court of C
Kamataka in Criminal Appeal No. 384 of2000.

N.P. Midha, Mohan V. Katarki (for Javed Mahmud Rao) and N.D.B. Raju
(for Guntur Prabhakar) for the Appellant.

Sanjay R. Hegdge and Anil K. Mishra for the Respondent. D

The Judgment of the Court was delivered by

LOKESHWAR SINGH PANT A, J. The above-said three appeals relate
to single incident and are directed against common judgment and order dated
10.09.2003 of the High Court ofKamataka at Bangalore, in Criminal Appeal E
No. I 04 of 2000 and Criminal Appeal No.384 of 2000, they are heard together
and shall stand disposed of by this common judgment.

Criminal Appeal No. 404/2004 has been filed by B.K. Channappa (A-1)
and Criminal Appeal No.580/2004 has been filed by Marulsidappa (A-15) F
against their conviction and sentence recorded by the High Court under
Section 302 of the Indian Penal Code (for short "IPC") in Criminal Appeal
No.384 of 2000 filed by the State of Kamataka against the order of acquittal
passed by the trial court .

Criminal Appeal No. 56612004 has been filed by Karibasappa (A-2), G
Halanaika (A-3), B.K. Manjunatha (A-17), B.K. Parmeshwarappa (A-19) and
B.K. Shivrajappa (A-20) against the impugned judgment and order of the High
Court upholding their conviction and sentence under Section 302 IPC read
with Section 149 IPC and conviction of B.K. Manjunatha (A-17) and B.K.
Shivrajappa (A-20) under Section 324 IPC and B.K. Parmeshwarappa (A-19)
H
t:::
I

814 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A under Section 326 IPC respectively.

In all, 23 accused persons were tried by the learned Sessions Judge,
Chitradurga in Sessions Case No. 111/1995 for the offences under Sections
143, 148, 302 IPC read with Section 149, Section 307 read with Section 149,
Section 324 read with Section 149, Section 448 read with Section 149 and
B Section 427 read with Section 149 of the IPC.

The trial court, after examining the prosecution evidence, came to the
conclusion that A-2, A-3, A-10, A-11, A-13, A-14, A-17 to A-22 had formed
an unlawful assembly to cause the death ofB.G. Basavarajaiah (Basavarajappa)
and in prosecution of the same, they murdered B. G. Basavarajaiah and
C caused grievous injuries to B.G. Chandrashekaraiah (PW-I), Shekharappa
(PW-2), B.G. Shivamurthaiah (PW-3) and B.G. Prakashaiah (PW-4). The trial
court held A-2, A-3, A-IO, A-II, A-13, A-14, A-17 to A-22 guilty of the
offence under Section 302 IPC read with 149 IPC and sentenced them to
undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- each,
D and in default of payment of fine, to undergo rigorous imprisonment foJ- one ,
year. A-17, A-18 and A-20 were also held guilty under Section 324,.lPC and
were sentenced to undergo simple imprisonment for six months and to pay
a fine of Rs.500/- each, and in default thereof, to suffer simple imprisonment
for two months. A-19 was further convicted under Section 326 IPC and
sentenced to undergo rigorous imprisonment for one year and to pay a fine
E ofRs.1,000/-, and in default of payment offine, to undergo simple imprisonment
for six months .

Feeling aggrieved against the judgment of the learned trial court, Criminal
Appeal No. I 04 of 2000 came to be filed by all the accused persons whereas
F Criminal Appeal No.384 of 2000 was filed by the State against the acquittal
of some of the accused persons.

The High Court convicted A-I and A-15 under Section 302 IPC and
sentenced them to undergo life imprisonment. The conviction of A-2, A-3,
A-17, A-19 and A-20 recorded by the trial court and sentence imposed on
G them were affirmed on all counts. The conviction of A-10, A-11, A-13, A-14,
A-18, A-21 and A-22 was set aside by the High Court and they were,
accordingly, acquitted. Both the appeals were decided by the High Court by
a common judgment, which is impugned by the appellants herein by way of
these appeals.

H
B.K. CHANNAPPA 1·. STATE OF KARNATAKA [LOKESHWAR SINGH PANT A, J.] 815

The facts relevant and necessary for the decision of these appeals are A
that in the year 1995, A· l had contested election against one Shivamurthappa
to become a member of the Zila Panchayat. A-2 to A-23 supported A-1 in the
said election. B.u. Chandrashekaraiah (PW-1), Shekarappa (PW-2), B.G.
Shivamurthaiah (PW-3), B.G. Prakashaiah (PW-4), Maheshwarappa (PW-5)
and B.G. Revanasiddappa (PW-8), B. C. Basavarajaiah (PW-9) and B
Basavarajappa (PW- I 0) were the followers of Shivamurthappa. B.
Parmeshwarappa (A-19) is a dumb person, who, at the relevant time, was
working as a servant of the deceased.

According to the prosecution case, because of the defeat of A-1 in the
Zita Panchayat election, he suspected that Basavarajaiah had played major C
and vital role in getting A-1 defeated in the election and as a result thereof,
A- I had entertained ill-will and grudge against Basavarajaiah.

The occurrence in question, took place on 5.7.1995 at about 10.00 a.m.
at Lingadahalli Road (Basavanahalu village) when the deceased Basavarajaiah
had left his village on his motorcycle to look after his land situated hardly D
600 metres from the village Basavanahalu. According to the prosecution,
sensing the arrival of Basavarajaiah, the appellants and other acquitted accused
persons armed with deadly weapons like, choppers, axes, sickle, clubs and
stones were hiding in an ambush near the land ofBasavarajaiah and surrounded
him on his arrival at the scene of occurrence. Basavarajaiah was given .a E
number of blows with the aid of weapons resulting in his fall on the ground.

PW-19, a deaf and dumb person, at the relevant time was working in
the field of the deceased along with PW-7. On seeing the appellants and other
accused inflicting blows on the person of Basavarajaiah, he rushed to the
scene of occurrence to rescue the victim, but PW-7 and PW-19 too were F
assaulted by some of the accused persons. PW- I, a relative of the deceased,
was on the road near the village and on hearing the cry of Basavarajaiah, he
went to the place of occurrence along with Maheshwaraiah (PW-5) and found
Basavarajaiah lying down on the ground with a number of bleeding injuries
on his person and all tht> accused were surrounding the victim armed with
deadly weapons. PW-1 was also given threats by the accused to resist G
himself from intervening in the incident and in fact, A-17 and A-18 alleged
to have pierced on his chest with a chopper, fortunately for PW-I the same
did not cause any serious injury to him. Seeing the large mob of the accused
persons gathered with deadly weapons as well as the condition of vktim
Basavarajaiah, PW-I immediately sent PW-5 to get some help from the village. H
816 SUPREME COURT REPORTS. [2006) SUPP. 8 S.C.R.

A According to the prosecution, PW-2, PW-3, PW-4 and PW-5 thereafter rushed
to the spot in a tractor and on their arrival they too were assaulted by some
of the accused persons. The aforesaid witnesses ran away towards their
village to save themselves from further assault by the accused persons.
Further, it was alleged that some of the accused persons assaulted other
B villagers including PW-8 to PW-11.

On receipt of a cryptic telephone message that there was some ga/afa
going on near village Basavanahalu, Rajanna (PW-42), ASI, Davanagere Rural
Police Station, recorded the message and informed his superior Officer
Mallikarjunappa (PW-43) CPI, who at the relevant time was present in the
C Police Station. PW-43 along with PW-42 and other police officials rushed to
the scene of occurrence. On their arrival at the scene of occurrence, they
found Basavarajaiah lying dead. The Investigating Officer went to the village
and recorded the statement of PW-I, on the basis of which the case in Crime
No.263/95 came to be registered on 5.7.1995 at about 12.30 noon for the
offences punishable under Sections 143, 144, 147, 148, 307, 302, 324 and 427
D read with Section 149 IPC against 15 named and other (unknown) persons.
PW- I, PW-2, PW-3 and PW-4, the injured witnesses, were sent to the hospital
for tr~atment. The dead-body of Basavarajaiah, deceased herein was sent for
autopsy. Dr. R. Deverajan (PW-32), medical expert, conducted the post mortem
on the dead-body of the deceased and opined that the :;eath was due. to
E hypovolaemic and neurogenic shock. Dr. Anita 8. (PW-33), medically examined
PW-5 and found injuries on his person, whereas Dr. Prahalada Reddy (PW-
34) had given medical treatment to PW-19 who had suffered grievous injuries.
The Investigating Officer prepared ma:rnzars on the spot and recorded the
statements of the witnesses on the day of the occurrence and some of the
witnesses were examined on the following day. The accused were arrested on
F different dates. After completion of the entire investigation and on receipt of
the medical reports of the injured wit11esses, the post mortem report of the
deceased and reports from Forensic Science Laboratory as well as from the
Chemical Analyst, charge-sheet came to be filed against 23 accused persons.

G The trial court has found prima facie case against all the accused
persons and they were tried accordingly for the aforesaid offences. The
prosecution, in support of its case, examined 43 witnesses and got marked
documents Exhibits PI to P73 in support of the oral evidence. The accused
in their statements recorded under Section 313, Cr. P.C., denied the allegations
of the prosecution and claimed to be innocent. They pleaded that t!.ey have
H been falsely implicated in the present case due to political rivalry between the
B.K. CHJ\NNAPPA v. STATE OF KARNATAKA [LOKESHWARSINGH PANTA,J.] 817

complainant party and the accused party. However, no oral defence evidence A
has been led by the accused, except placing reliance on certain contradictions
and omissions appearing in the statements of some witnesses recorded by the
Police during investigation. As noted above, the trial court found A-2, A-3,
A-10, A-11, A-13, A-14, A-17 to A-22 guilty of various offences and
accordingly sentenced them. However, A-1, A-4 to A-9, A-12, A-15, A-16 and B
A-23 were given benefit of doubt.

The appeals of the convicts and the State were decided by the High
Court by a common impugned judgment and order. Hence, these three separate
appeals by the appellants.

The learned counsel for the appellant in Criminal Appeal No. 404/2004 C
stated at the Bar that B. K. Channappa (A-1) died during the pendency of this
appeal. Be it noted that one letter dated 20.09.2006 written by Mr. Javed M.
Rao, Advocate, Supreme Court, to the Registrar of this Court is placed on
record informing this Court that appellant B. K. Channappa (A-1) died on
07.07.2005. Along with the said letter, a Death Certificate of B.K. Channappa, D
issued by the Chief Registrar of Births and Deaths, Government of Karnataka,
has also been enclosed. This appeal of A-1 thus stands abated.

On behalf of the appellants in Criminal Appeal No.566 of2004, Shri N.
P. Midha, learned counsel, contended that the trial court as also the High
Court have wrongly appreciated the evidence of the injured witnesses as well E
as the eyewitnesses for holding the appellants guilty of the offences. He also
contended that, noticing the contradictions and improvements in the ocular
evidence of the injured witnesses and the eyewitnesses, namely, PWs-6, 7
and 19, in their statements before the Police and the trial court, the testimony
of these witnesses do not inspire confidence to connect the appellants with F
the commission of the alleged offences and, therefore, their testimony cannot
be accepted. He next contended that the oral evidence of the witnesses was
not corroborated by the medical evidence, therefore, the prosecution case is
highly unreliable and doubtful about the time of the death of the deceased.

Shri Sanjay R. Hedge, learned counsel for the respondent-State, however, G
supported the judgment of the High Court concerning the conviction of
A-2, A-3, A-15, A-17, A-18, A-19 and A-20 by contending that there was no
reason why the evidence of the injured witnesses and the eyewitnesses
corroborated by the medical evidence should be rejected. It was his argument
that the High Court, as a first Court of Appeal, has a duty to reconsider the
H
818 SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.

A evidence and correct the error committed by the trial court. He, however, fairly
and in our view, rightly stated that though the name of Marulsiddappa (A-
15) finds mention in the FIR recorded at the instance of PW-I, yet from the
evidence on record led by the prosecution, his participation in the commission
of the crime is not proved beyond reasonable doubt.

B We have independently scrutinized the evidence of the material witnesses
in the teeth of the rival contentions of the parties. On reprisal and scrutiny
of the evidence of the injured witnesses Shekharappa (PW-2), B.G.
Shivamurthaiah (PW-3) and B.G. Prakashaiah (PW-4), they have fully
established the case of the prosecution against A-2, A-3, A-17, A-19 and
C A-20, although there were certain discrepancies in their testimony and in
comparison to the versions of PW-6, PW~ 7 and PW-19, the eyewitnesses, in
regard to the weapons ofoffence individually used by A- I, A-3, A-17, A-19
and A-20 for inflicting injuries on the person of each of injured witness as
also on the person of the deceased. The discrepancies, as pointed out by the
learned counsel for the appellants, are minor and insignificant. The occurrence
D took place on 5.7.1995 and the witnesses were examined in the court after
about a gap of almost five years. The evidence on record further shows that
the injured witnesses had been subjected to searching Ieng.thy cross-
examination and in such ty'.Je of cross-examination, some improvements,
contradictions, and omissions are bound to occur in their evidence, which
E cannot be treated very serious, vital and significant so as to disbelieve and
discard the substratum of the prosecution case. The evidence of the injured
witnesses and other eyewitnesses has been rightly re-appreciated and accepted
by the High Court and we find no cogent and sound reason to differ from
the well-reasoned judgment upholding the order 1Jf the trial court. There is,
therefore, no merit in the argument of the learned counsel for the appellants
F that the evidence of the injured witnesses and other eyewitnesses should be
labelled as the evidence of the interested witnesses. On the other hand, we
find that the evidence of all the eyewitnesses including injured persons is
quite natural, convincing and trust-worthy. There is no material on record
from which an inference can be drawn that the material witnesses have
G implicated the appellants Karibasappa (A-2), Halar.aika (A-3), B. K. Manjunathaa
(A-17), B. K. Parme~hwarappa (A-19) and B. K. Shivarajappa (A-20) in a false
case.

Having given our careful consideration to the submissions made by the
learned counsel for the parties, we are of the opinion that the judgment and
H order of the High Court holding Karibasappa (A-2), Halanaika (A-3), B. K.
B.K. CHANNAPPA "· STATEOFKARNATAKA [LOKESHWARSINGH PANTA,J.] 819

Manjunatha (A-17), B. K. Panneshwarappa (A-19) and B. K. Shivarajappa A
(A-20) guilty of assaulting the injured witnesses and causing fatal injuries to
the deceased cannot be found faulty on any ground. The evidence of the
injured witnesses and eyewitnesses finds corroboration from the medical
~ evidence. On close scrutiny of the evidence of Dr. R. Deverajan (PW-32), it
is clear that none of the injuries inflicted on the person of the deceased was
found on any of the vital part of his body. As per the opinion of the Doctor, B
the deceased died due to hypovolaemic and neurogenic shock. On perusal of
the medical report prepared by Dr. R. Deverajan (PW-32), large crush injury
or lacerated injuries were fottnd either on the chin, right leg, left knee, left
wrist, right shoulder, right forearm, etc. on the body of the deceased, except
two lacerated injuries above right lateral mallalous and on right medial c
mallalous. It is true that as many as 18 injuries found on the dead-body of
the deceased, were noticed but the prosecution has not established on record
that the said injuries were inflicted by the appellants with the intention to
cause the death of the deceased. Considering the nature of the injuries having
been found not on the vital part of the body, we are of the view that the
conviction of A-2, A-3, A-17, A-19 and A-20 as recorded by the trial court D
and affirmed by the High Court under Section 302 IPC cannot be sustained.
We alter the conviction of A~, A-3, A-17, A-19 and A-20 from Section 302
IPC read with Section 149 to Section 304 Part-II read with Section 149 IPC.
However, taking into consideration the time lag of more than eleven years '

from the date of the incident till the date of disposal of these appeals by this E
Court during which period the appellants have suffered physically, mentally
and financially, we impose a sentence of eight years on each appellant and
a fine of Rs.2,000/- each which, in our view, would meet the ends of justice
in the present case. In default of fine, each of the appellants shall further
undergo simple imprisonment for three months.
F
The conviction of A-17 and A-20 under Section 324 IPC and the sentence
imposed on them including fine and sentence in default shall remain intact.
The conviction of A-19 under Section 326 IPC and sentence imposed on him
by the trial court and affirmed by the High Court do not call for any interfere"ce
in this appeal. All the sentences imposed on A-2, A-3, A-17, A-19 and A-20
shall run concurrently. G

This appeal is partly allowed in terms of the above-said observations
. and findings.

In Criminal Appeal No.580 of2004, the appellant Marulasidappa (A-15) H
has challenged his conviction and sentence imposed by the High Court under
A
820 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

Section 302 IPC. The appellant (A-15) has been acquitted by the trial court
along with A-1 (deceased) and other accused persons, out of the total 23
-
accused who faced trial court before the learned Sessions Judge.

We have examined the entire evidence on record. Though the name of
Marulasidappa (A-15) finds mention in the FIR but no injured .witness or
B eyewitness has mentioned his name in the statement recorded by the Police
under Section 161 ofthe Code of Criminal Procedure connecting him with the
commission of the offence. The High Court has not given any specific finding
that Marulasidappa A-15 was a member of the unlawful assembly along with
the other accused persons. PW-7, a servant of the deceased, who was
C produced as an eyewitness of the incident, has categorically stated that when
he along with other injured witnesses and eyewitnesses reached on the spot,
A-15 had kept the right leg of the deceased Basavarajaiah on his left leg. No
eyewitness or injured witness has named A-15 in their testimony that A-15
had participated in inflicting injuries on the body of the deceased. The trial
court has recorded a specific finding that the prosecution has not proved on
D record beyond reasonable doubts that A-15 along with A-1 (since deceased),
A-4 to A-9, A-12, A-16 and A-23 had inflicted any blow on the body of the
deceased, with the weapons stated to have been held by them neither any
weapon of offence was recovered from A-15 or at his instance. However, the
evidence proved does not permit any inference to be drawn regarding
E participation of Marulasidappa (A-15) in the commission of the offence. We,
therefore, cannot sustain the conviction of Marulasidappa (A-15) recorded by
the High Court as it is based on the inference drawn regarding his participation
and existence of common intention on the basis of conjectures and surmises.
The judgment of the High Court, therefore, convicting A-15 under Section
302, IPC, and sentencing him for life imprisonment is set aside and the appeal
F is accordingly allowed. Marulasidappa (A-15) is stated to be in jail undergoing
imprisonment in this case. He shall be released forth\vith by the jail authorities,
if not required in any other case. Fine, if paid by Marulasidappa (A-15) in
terms of the judgment and order of the High Court, shall be refunded to him
without any delay.

G B.B.B. Appeals disposed of.

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