IMPORTANT POINT
Accused not having any role in murder of deceased cannot be convicted u/e 302 IPC.

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

By the impugned judgment dated 12.08.2010 in Criminal Appeal No. 1498 of 2004, the High Court has reversed the judgment of acquittal passed by the Trial Court in S.C. No. 143/1994 insofar as the appellant (accused No.1) is concerned, and consequently convicted the appellant for the offences under Sections 302 and 326 of IPC. The High Court further, confirmed the judgment and order of acquittal passed by the Trial Court insofar as it relates to accused Nos. 2 to 5.

2. The case of the prosecution in brief is that at about 4:30 pm on 15.01.1994, the accused Nos. 1 to 3 (including the appellant) along with accused Nos.4 and 5, with the common intention of committing murder of deceased persons, namely Kumari Radhika (aged about 11 years) and Smt. Manjula, as well as to cause grievous hurt to the informant Smt. Honnamma, trespassed into the house of Smt. Honnamma and quarrelled with her in filthy language; the appellant assaulted the informant with a chopper on her head and hands and caused grievous injuries to her; the accused No.2 assaulted the deceased Smt. Manjula with a chopper; the accused No.3 assaulted the deceased Kumari Radhika with a chopper on her head. Due to the said assault, Kumari Radhika sustained grievous injuries as a result of which she died at 7:15 p.m. on 15.01.1994 at B.M. Hospital, Mysore. Smt. Manjula also sustained grievous injuries and succumbed to the same at 2:35 p.m. on 04.02.1994. Based on the information lodged by the injured eyewitness Smt. Honnamma, the crime came to be registered. All the five accused were tried for the offences punishable under Sections 326, 302, and 114 read with Section 34, IPC. The Trial Court acquitted all the accused, after evaluation of the material on record and after hearing both the parties. As mentioned supra, the High Court confirmed the judgment of acquittal passed by the Trial Court in respect of the accused Nos. 2 to 5. However, the High Court set aside the judgment of the Trial Court acquitting the appellant and consequently convicted him for the offences punishable under Sections 302 and 326, IPC.

3 Mr. Shanthkumar V. Mahale, advocate, appearing on behalf of the appellant, having taken us through the material on record submits that the High Court reversed the wellconsidered judgment of the Sessions Court qua the appellant herein even though there is no cogent evidence against the appellant. The first appellate court should not have interfered with the judgment of acquittal, particularly when the judgment of acquittal was based on settled principles of law as well as on due appreciation of the evidence on record. The judgment of acquittal cannot be said to be perverse, and the view taken by the Trial Court is one of the possible views under the facts and circumstances of the case, hence the High Court should not have interfered with the judgment of the Trial Court. Per contra, Mr. Joseph Aristotle S., advocate for the State, argued in support of the judgment of the High Court.

4 As mentioned supra, the informant Smt. Honnamma is an injured eyewitness. The first information report details the sequence of events which took place on the date of the incident, i.e., on 15.01.1994. Apart from narrating the incident, it narrates about motive for commission of offence also, i.e., there was a dispute between the accused and the informant with regard to partition of the property. The first information discloses that at 4:00 p.m. on 15.01.1994, the appellant and his elder brother, Puttaswamy and Rajesh came to the house of the informant and started quarrelling with her asking as to why she was not giving the property to Jayamma (accused No.5), sister of the appellant. So saying, the appellant assaulted the informant, Smt. Honnamma (PW. 23) with a chopper on her head and hands. Puttaswamy (accused No.2) assaulted Smt. Manjula (who was present in the house) with a chopper on her head three to four times. H.M. Rajesh (accused No.3) assaulted