IMPORTANT POINT
Ingredients of section 326 IPC discussed and restated.

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA,J.

1. These appeals are directed against the judgment dated 9th December, 2002 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.326/99 c/w Criminal Appeal No. 310/99. By the impugned judgment High Court reversed the judgment of Addl. District and Sessions Judge, Bangalore Rural District, Bangalore in S.C. No. 42/88 by acquitting accused no.3 who stood charged under Section 302/34 IPC and partly allowed the appeal filed by accused no. 2 by modifying the conviction from offence punishable under Section 302 IPC to the offence under Section 326 IPC.

2. Criminal Appeal No. 165 of 2004 has been filed by the appellant-Seena @ Srinivasa (accused no.2) against the order of conviction and sentence under Section 326 IPC. Criminal Appeal Nos. 166-167 of 2004 have been preferred by the State of Karnataka;

(i) against the acquittal of accused no. 3-Ramanna @ Rama and

(ii) against modifying the conviction of accused no. 2 Seena @ Srinivasa from the offence punishable under Section 302 IPC to offence punishable under Section 326 IPC.

3. Original accused no. 1 Chaluvaiah @ Chaluva and accused no. 3-Ramanna @ Rama are brothers while accused no. 2-Seena @ Srinivasa is the sister's son of accused no. 1 and 3. While the accused no. 2 is the resident of Yeshwanthapura, Bangalore, accused no. 1 and 3 are the residents of Chinigappanapalya, Solur Hobli Magadi Taluk, Bangalore District.

4. Accused no. 1 died during the trial and, therefore, only the accused nos. 2 and 3 were tried for the offence under Sections 302 and 307 read with 34 IPC.

5. The case of the prosecution is that on 22nd January, 1988 PW.1- Channarayappa decided to inform police about the threats caused to them by accused nos. 1,2 and 3. Therefore, he sent his brother Channegowda (deceased) along with Venkateshaiah CW 14 to Kudur Police Station to lodge report. Channegouda along with Venkateshaiah reached police station and after giving report, returned to the village near Hudukunte at around 12 noon. At 1.00 p.m. Channegowda, the deceased accompanied CW1 Channarappa to graze cattle and donkeys to a place called Mandekal Bayalu.

They left cattle for grazing and Channegowda sat on a rock. At 1.00p.m., the accused nos. 1, 2 and 3 were seen going to the spot where Channegowda was sitting, armed with choppers. According to the prosecution accused nos. 1, 2 and 3 proceeded to that spot in Mandekal where Channegowda was sitting, accused no.3 lifted the chopper and hit on the left leg of Channegowda causing injury above the knee and below the knee. Similarly, accused no. 1 raised chopper to hit the deceased-Channegowda on his head. The deceased raised his hand towards the blow, but the blow fell on the left hand. At the same time, accused no. 3 hit on the right leg of the deceased- Channegowda with chopper. Screaming of the deceased-Channegowda attracted the attention of CW1-Channarayappa.

6. Further case of prosecution is that CW1-Channarayappa rushed towards his brother deceased-Channegowda but he was chased by accused nos. 1 and 2. They chased him upto the land of Gangadharappa. Gangadharappa -CW.3 saw the accused nos. 1 and 2 chasing Channayarappa and asked him the reason. Channarayappa rushed towards the land of Ganagadharappa CW.3. Accused no. 1 started pelting stones on Channarayappa causing injuries. Ganagadharappa advised accused nos. 1 and 2 to go away. He saw both the accused going with choppers. After accused nos. 1 and 2 left the spot, Channarayappa rushed to his house to bring water to be given to his brother deceased- Channegowda, when he returned to the spot, Channegowda had already succumbed to the injuries.

He returned to the village and informed the residents of the village whose name is also described as Channegowda -CW.12 and Chandrapa -CW.13. He requested them to go and lodge report at the Nelamangala Police Station and they alongwith another person informed about the incident to police. At about 10.00 or 10.30p.m. police