IMPORTANT POINT
Accused persons being seen running away, would have been too thin piece of evidence to convict someone under Section 302 of Code, applying principle of res gestae.

JUDGMENT :

ANIRUDDHA BOSE, J.

The appellant (Mallappa) was charged with having committed fratricide, murder of his brother Earappa, little beyond the midnight hours of 19th-20th April 1999. His son, Veeresh was the co-accused. The Trial Court acquitted both of them from the charges under Section 302 read with Section 34 of the Indian Penal Code (the Code, in short). In appeal against the judgment of acquittal by the State of Karnataka, the High Court of Karnataka set aside the decision of the Trial Court in relation to Mallappa and convicted him of the offence punishable under Section 302 of the Code. Sentence of life imprisonment was awarded against him. The present appeal is by Mallappa against the judgment of conviction and order of sentence passed on 11th June 2008. The prosecution case, which was accepted by the High Court, was that the appellant (described as A1 and his son Veerappa as A2 in the trial) had assaulted the deceased Earappa with a club while the latter was sleeping in the “angala” (frontyard) of his house in Sidrampur village, Taluk Sindhanur within the State of Karnataka.

2. There was previous dispute between the appellant and the deceased victim over certain immovable properties and sharing of canal water, which were projected as the motive of the crime by the prosecution. It appears from the evidence of the prosecution witnesses that the deceased victim was sleeping in the frontyard of his house at a little distance from his wife, Bassamma (P.W. 5) with two of his daughters when the assault took place. On hearing the screams of his wife and daughter, Shivarayappa (P.W.3), another brother of the deceased woke up and saw the two accused persons running away. As per evidence of P.W.3, he was sleeping at that point of time outside his house in the ‘angala’ about 10’ away from the location where the deceased was sleeping. We shall describe this location as the place of occurrence (PO). On reaching the PO where the deceased was sleeping, he found the latter bleeding from his nose and ear. Then, he rushed to the house of P.W.1, his sister’s husband, whose name is also Earappa. From the P.W.1’s house, he went and fetched the local doctor, Mallikarjuna (P.W.4) to the PO. On examining the deceased, he declared him dead. Thereafter, P.W.1, P.W.3 and one Bassappa arranged for a jeep and went to the Sindhnur police station for reporting the incident. From the deposition of Sanna Hassan Sab (P.W.8), who recorded the complaint as P.S.I at that police station on the basis of which the F.I.R. was registered, it transpires that they had reached the police station at about 4 A.M. on 20th April, 1999.

3. Evidence of the autopsy surgeon, Dr. Venketesh Y. (PW-7) is that death of Earappa was caused due to intracranial haemorrhage and shock. He found an external injury, being a lacerated wound on right occipital protuberance 3 x ½’’. His opinion, as it appears from his examination-in-chief was that such injury could be caused by an iron rod or lathi. In cross-examination, however, he stated that if a person fell downwards on a hard surface, such injury was possible.

4. The prosecution case was built up primarily on the evidence of PW-5, who was presented as an eyewitness and the depositions PW-3 and Bhogappa (PW-6), both of whom gave evidence as post occurrence witnesses. They claimed to have had seen the appellant running away, and the location they saw the appellant was in front of the house of one Jeeral Devendrappa. P.W.5 had stated in her examination-in-chief that she had seen A1 assaulting on the head of her deceased husband with a club. In her cross-examination, however she gave a different version, of seeing the accused person near the house of Devendrappa. We shall deal with her evidence in greater detail in the succeeding paragraph. The other factor by which the prosecution sought to establish their case against the appellant was recovery of the weapon of assault the club from the house of the accused. PW-8, who conducted t